Académique Documents
Professionnel Documents
Culture Documents
Editorial Board
H.H. Prof. Eugene Cotran
Mark Hoyle
Martin Lau
VOLUME 1
Risk Management in
Islamic Finance
An Analysis of Derivatives Instruments
in Commodity Markets
By
Muhammad al-Bashir Muhammad al-Amine
LEIDEN • BOSTON
2008
This book is printed on acid-free paper.
ISSN 1871-2894
ISBN 978 90 04 15246 5
LIST OF STATUTES
LIST OF CASES
Omar Jah is a Gambia national. Dr. Omar Jah taught in many Universi-
ties around the world and member of many Islamic organizations.
Consonants
ب b ط ṭ
ت t ظ z
ث th ع ‘
ج j غ gh
ح ḥ ف f
خ kh ق q
د d ك k
ذ dh ل l
ر r م m
ز z ن n
س s ٥ h
ش sh و w
ص ṣ ء ’
ض ḍ ي y
ُ u ُو ū ْو aw
CHAPTER ONE
INTRODUCTION
1
For more elaboration see Tariqullah Khan and Habib Ahmed, Risk Management:
An Analysis of Issues in Islamic Financial Industry, Occasional Paper no. 5, Islamic
Research and Training Institute, Islamic Development Bank, 2001.
2
Mohammad Nejatullah Siddiqi, “Islamic Banking and Finance,” a lecture delivered
at UCLA International Institute in a 2001 seminar for the business community.
3
Tan Sri Dato’ Sri Dr. Zeti Akhtar Aziz, “Governor’s Keynote Address” at The 2nd
International Conference On Islamic Banking: Risk Management, Regulation and
Supervision—“Building a Robust Islamic Financial System,” jointly organized by the
Islamic Research and Training Institute (IRTI) of the Islamic Development Bank and
4 chapter one
the Islamic Financial Services Board (IFSB). Le Meridien Hotel, Kuala Lumpur,
7 February 2006.
introduction 5
should be upheld whether gold and silver lose their characteristic of being
thaman or not as they are money by creation. However, it is also argued
by others that if gold and silver lose these characteristics, they would be
a kind of commodity and could therefore be exchanged on a deferred
basis. Thus, there is a need to analyze the different opinions advanced
and look at their relevance to gold trading on a forward basis.
The forward currencies market is a very important mechanism in
managing price risk. However, it is commonly agreed upon among
Muslim scholars that trading currencies on a forward basis is illegal
and it contravenes the rules of ṣarf (currency exchange) in Islamic law.
Several alternatives have been suggested and there is a need to assess
the sharīʿahʾ basis of these proposals.
Although the forward contracts have been able to overcome some
of the problems associated with risk management, especially price risk
and better planning of business, they are still inadequate to meet cur-
rent business needs in some respects. Thus, the futures contract was
introduced in the modern financial system in order to overcome these
problems. A futures contract is basically a standardized forward contract
with regard to the contract size, maturity, quality, place of delivery and
the characteristic of being traded in an organized market. However,
the futures contract might contravene the principle of not selling prior
to taking possession and that of the sale of debt for debt. The present
study will elaborate on the legal aspects of these two principles and try
to find out how they could affect the legality of the futures contract.
Moreover, the study will address the relation, if any, between the futures
contract and speculation.
The futures contracts have been able to overcome some of the prob-
lems of the forward contract associated with risk, especially price risk
and better planning of business, but they are still inadequate in some
respects. The futures contracts are associated with certain problems,
such as the possibility of exposure to subsequent price movement or
their unsuitability for the management of contingent liabilities and
contingent claims. Thus, a new tool of risk management is needed and
the options contracts have been introduced due to their potential for
managing such risks. The present study will examine the legality of
options trading from an Islamic point of view by expounding on their
concept, economic benefits, types, and scope.
Khiyār al-sharṭ (the option to rescind a sales contract based on con-
dition) and its variant khiyār al-naqd (the right of either of the parties
to confirm the contract or to cancel it by means of the payment of the
introduction 7
Research Methodology
The study is based on a selective study of Islamic law. It relies on the work
of the major Sunni schools of Islamic Law, namely the Ḥ anafī, Mālikī,
Shafīe, Ḥ anbalī, Zāhirī schools and the writing of modern scholars.
Reference to the Imāmī School will only be made if it is derived from
papers presented at the Islamic Fiqh Academy (Jeddah). The study
does not support the opinion of a specific school of Islamic law and it
is not under obligation to accept the opinion of the majority. But any
opinion supported by evidence form the Qurʾān and Sunnah that could
be the basis for solving certain problems related to futures trading may
be used.
introduction 9
On the other hand, the study refers only to Malaysian Law in order to
clarify or to compare the different aspects of futures trading discussed.
In particular, references are made to the Malaysian Futures Industry Act
and the Malaysian Securities Industry Act. However, this is by no means
a comparative study; the Acts are used just for the sake of clarifying
certain concepts or as a means of paving the way for certain analysis.
“The derivatives market is a market where traders buy and sell futures
and/or options contracts to receive or deliver a specified quantity and
grade of a commodity at a specified future time. The contracts are
offered by authorized Boards of Trade commonly known as commodity
exchanges.” Therefore, the scope of the present research is limited to the
forward, futures, and options contracts in commodity markets, although
at times references to shares market will also be made. Thus the forward,
futures, and options contracts on currencies, bonds, and interest rates
are not covered by this research due to their clear prohibition. Com-
modity in the present study means physical or tangible commodities,
usufruct and right and not the general concept of commodity, which
includes currencies, bonds, etc.
introduction 11
Outline of Chapters
The present analysis begins, in the first chapter, with a critical review of
the major studies which have addressed the issue so far. The bulk of the
study is then divided into three major parts: the forward market, the
futures market, and the options market, in addition to the introduction
and the conclusion.
The first part, subdivided into three chapters, addresses the forward
market in commodities, the permissibility or otherwise of trading gold
on a forward basis, and the forward market in currencies. Consider-
ing the fact that a forward contract, as it is applied in the conventional
system, is a contract where both countervalues are deferred to a future
date, the second chapter draws an analogy between this contract and
the contracts of salam (A sale contract where two parties agree to carry
out a sale/purchase of an underlying asset at a predetermined future
date but at a price determined and fully paid on spot, istiṣnāʿ (A con-
tract whereby a manufacturer (contractor) agrees to produce (build)
and deliver a well-described good at a given price on a given date in
12 chapter one
the future and bayʿ al-ṣifah (Sale based on detailed description of the
object of sale) in Islamic law. The second chapter also investigates the
concept of bayʿal-kāliʾ bi al-kāliʾ, that, of sale of the nonexistent and
their relation with the forward contract.
Chapter 3 addresses the possibility of trading gold on a forward
basis, and starts with a brief history of the world monetary system.
That discussion is followed by a critical analysis of several fatwās on
the issue of gold trading, and then expounds on the ʿillah behind the
prohibition of selling gold on a deferred basis and its implications on
trading gold on forward basis.
The fourth chapter discusses the general rules regarding paper money
and how a forward currency exchange will involve ribā. The chapter
then proceeds to discuss the different possible alternatives to the forward
sale in currency in order to ascertain their sharīʿah basis.
The second part of this study addresses the permissibility of the
futures contract in Islamic law. Chapter 5 expounds on the different
characteristics of a futures contract as distinct from the forward contract.
This is followed by a brief history of the commodity market in general
and the Malaysian commodity futures market in particular. The chapter
touches also on the economic benefits of the futures market and some
of the major objections raised to the futures contract such as specula-
tion and financial crisis.
Chapter 6 elaborates on the assumption that a futures contract
involves sale prior to taking possession or the sale of debt for debt. The
opinion of Muslim scholars in this regard will be analyzed in order to
ascertain their relevance to futures trading.
One of the important organizational features of futures exchange is the
clearinghouse. It provides several crucial functions, such as the registra-
tion of contracts, the substitution of counterparties, the management
of physical delivery, the settlement of contracts, and the monitoring of
members’ positions. This will be the focus of chapter 7. The chapter will
also touch on the role of brokers, fidelity funds, and the trading offences
in the futures market as it is stipulated in the Malaysian Futures Industry
Act and it will assess their compliance with Islamic law.
The third part of this study comprises four chapters, all of which
address the legality of options as a tool of risk management. Chapter 8
of the study will address the concept of options, their economic ben-
efits, the difference between American and European options, major
types of options: namely, call and put options, the exchange traded, and
the over-the-counter options. It also touches briefly on the history of
introduction 13
Literature Review
Institutional Studies
The first institutional discussion about the legality of forward and futures
contracts was undertaken by the Makkah-based Fiqh Academy.4 This
present study will summarize the main points of the Academy’s resolu-
tion and point out its shortcomings. The Academy acknowledges the
benefits of forward and futures trading as follow:
• Forward and futures contracts are by and large paper transactions and
not genuine purchases and sales as they do not involve the delivery
or taking of possession of their underlying commodities.5
4
For the complete text of the resolution, see Al-Majmā ʿal-Fiqhī al-Islāmī li-Rābitạ t
al-ʿĀlam al-Islāmī, Qarārāt Majlis al-Majmāʿ al-Fiqhī al-Islāmī, seventh session, from
11–16 Rabiʿ al-ʾĀkhīr, 1404, “Sūq al-ʾAwrāq al-Māliyyah wa al-Badāiʾi (al-Būrṣah),”
pp. 120–124.
5
Ibid.
introduction, literature review 15
6
Ibid.
7
Abū Dāʾūd, Sunan, vol. 3, p. ḥ adīth no. 2187.
16 chapter one
• Forward and futures do not involve the payment of the price by the
buyer at the time of the contract, which is a requirement in salam.
• Futures involve the sales of assets that have become personal obliga-
tions on the part of the parties involved. The first buyer in the chain
does not receive the underlying commodity and such is the case with
every other sale that follows suit. They all tend to be involved in giv-
ing or taking price differentials, like gamblers who undertake risks in
a zero sum game in order to procure profit. In salam, on the other
hand, the buyer is not permitted to sell prior to taking possession of
the underlying commodity.9
It should be noted that despite the fact that the Academy acknowledges
that futures trading involves different kinds of contracts, which need
to be addressed separately, this is not reflected in its resolution. It is
nevertheless clear that the contracts in stock indices are different from
those in currencies or bonds and all these are quite different from
those in commodities and shares. Moreover, the possibility of selling a
purchased item before taking possession, or the sale of the salam before
taking delivery are not explored despite the fact that many Muslim
jurists have opted for their legality. Furthermore, the reason behind the
possibility of deferring the price of salam in the Mālikī school has not
been taken into consideration. Thus, the Academy resolution did not
examine the different views that are available in the classical fiqh and
has not attempted to come up with new alternatives that will guarantee
the benefits it has recognized. However, it should be noted that our criti-
cisms are based only on the resolution of the Academy. Unfortunately,
we did not examine the different papers delivered in this session so as
to obtain an accurate and precise evaluation.
8
Al-Ḥ ākim, al-Mustadrak, Dār al-Maʾrifah, Beirut, vol. 3, pp. 39–40; Abū Dāʾūd,
Sunan, Dār Iḥyāʾ al-Sunnah, Cairo, vol. 3, p. 283.
9
See Al-Majmāʿ al-Fiqhī al-Islāmī li-Rābiṭat al-ʿĀlam al-Islāmī, Qarārāt Majlis
al-Majmaʿ al-Fiqhī al-Islāmi, “Sūq al-ʾAwr āq al-Māliyyah wa al-Badāiʾi (al-Būrṣah),”
pp. 120–124.
introduction, literature review 17
• Although there are some similarities between the forward and futures
contracts on one hand and bayʿ al-salam on the other, in salam the
price must be paid at the time of the conclusion of the contract, which
is not the case in forward or futures contracts.
• The transaction, he added, will be a kind of bayʿ al-kāliʾ bi al-kāliʾ,
which is prohibited.
• El-Gārī pointed out that if we consider salam as a contract in accor-
dance with qiyās (analogy), then there is room for the admissibil-
ity of these contracts. Unfortunately, he did not elaborate on this
possibility.
• He also argued that in futures contracts, the commodity in the first
contract could be sold prior to taking possession, which is not the
case in salam. However, he added that there is room for approving
such transaction since some scholars did not see any legal problem
in selling the salam prior to taking possession. El-Gārī once again
did not expound this possibility. He raised the point that the ʿillah or
cause of prohibition of many contracts here is risk-taking or gharar.
It is a complex issue, he added, which needs a careful investigation in
relation to the modern types of contracts. Unfortunately, he did not
proceed further, although many of the objections he raised pertaining
to gharar may not necessarily exist in the modern types of futures
contracts.
18 chapter one
It is worth noting that El-Gārī’s position on this issue has not changed
much in the nine years since this session was held. Thus, in a seminar
entitled Islamic Financial Services and Products held at the Institute of
Islamic Understanding, Malaysia, August 1998, he reiterated almost the
same thing about futures in his paper entitled “Futures Trading—Islamic
Perspective.” However, he concluded: “Building a model of futures trad-
ing on the basis of a salam contract should not be excluded altogether.”
Unfortunately, he did not go beyond that to explore this possibility.
Returning to our discussion of the Academy position, it should be
noted that El-Gārī’s paper was followed by a discussion session, which
deliberated primarily on the essence of these new types of contracts.
The session ended without resolution regarding futures or options.
The sixth session of the Islamic Fiqh Academy which discussed futures
trading was followed by another session in Bahrain in 1991, jointly
organized by the Fiqh Academy and the Islamic Research and Training
Institute (IRTI) affiliated with the Islamic Development Bank.11 How-
ever, the session in its final communiqué endorsed the resolution issued
by the Fiqh Academy based in Makkah and reproduced its resolution
word for word with regard to forward and futures commodity contracts
and called for further research on the issue of options. Unfortunately,
we have not been able to go through the different papers presented
so as to give an accurate evaluation of the session or perhaps to come
across some personal views. However, from the resolution it is clear
that the participants have reiterated the same arguments and analysis
10
It seems the author based his argument on the majority’s view that istiṣnāʿ should
fulfill the conditions of salam including the payment of the price at the time of the
contract. However this view has been overruled even by the Islamic Fiqh Academy in
its resolution no. 66/3/67, one year after he presented his paper.
11
The session was held under the auspices of the Islamic bank of Bahrain from
25–27 November 1991.
introduction, literature review 19
Sulaimān, and ʿAbd al-Satattār abū Ghuddah. The last paper was on
commodity futures, and it was presented by Muhammad Taqī al-Usmānī,
That paper will be reviewed in this section while the papers on options
will be studied in the following section.
In his single paper about commodity futures, Taqī al-Usmānī con-
cluded that the futures contract is a ḥ arām (not permissible) transaction
for the following reasons:
12
Taqī al-Usmānī, “Uqūd al-Mustaqbaliyyāt fi al-Silaaʿ,” Majallat Majmaʾ al-Fiqh
al-Isālmi, 1992, no. 7, vol. 7, p. 275.
introduction, literature review 21
some classical scholars based on the weak ḥ adīth about bayʿ al-kāliʾ bi
al-kāliʾ and the alleged ijmāʿ (consensus13 on the subject, although some
scholars have already disputed its authenticity. The Academy would have
done a great service if it had ascertained the ʿillah (effective cause, ratio
legis) behind the prohibition of sale prior to taking of possession; the
ʿillah (effective cause, ratio legis) behind the ḥ adīth “do not sell what is
not with you” whether the application of these principles would differ
in an organized market like that of futures and compared to ordinary
market; the sale of “right” and the reasons why some schools allowed it
while others prohibited it? And why did the latter-days Ḥ anafī scholars
change the fatwā of the madhhab about the sale of “right” when they
were confronted by the change of custom? If these issues and other
important subjects related to the legality of futures and options had
been systematically discussed, one might have expected a different
resolution from the Academy. Unfortunately, nothing of that nature
actually happened.
Another institution which addressed the issue of futures trading is
the Permanent Research Committee of the Board of Great Scholars in
Saudi Arabia in its study entitled “Min Ṣouwar al-Burṣah” (Forms of
Stock Markets), divided into three lengthy articles in Majallat al-Buḥ ūth
al-Islāmiyyah.14 The study quoted many verses and aḥ ādīth (saying of
the Prophet) related to ribā with their commentary from the traditional
works, including Tafsīr al-Qurʾān al-ʿAzīm of Ibn Kathīr; Aḥ kām al-
Qurʾān of Ibn al-ʿArabī; Fatḥ al-Bārī of Ibn Ḥ ajar; and Nayl al-Awṭār
of al Shawkānī. In addition, parts of some familiar fiqhī books, such as
Bidāyat al-Mujtahid of Ibn Rushd and al-Mughnī of Ibn Qudāmah, were
reproduced. The committee also reproduced the descriptive research
on futures trading submitted by the director of the Saudi Monetary
Agency with brief commentaries in the footnotes. In the last part of
the study, the committee reproduced the works of some contemporary
Muslim jurists, which seem to legalize parts of the transactions in
futures contracts. Thus, they quoted a fatwā from Rashīd Ridā in his
reply to some traders in the futures cotton market, and part of Moham-
mad Yousuf Musā’s book Fiqh al-Kitāb wa al-Sunnah fi al-Muʿāmalāt
13
Regarding the weakness of the ḥ adīth and the debate on the ijmāʿ, see chapter 6 of
the present study on the sale prior to taking possession and the sale of debt for debt.
14
General Secretariat of the Great ʿUlama’s Board, Majallat al-Buḥ ūth al-Islāmiyyah,
Riyadh, Saudi Arabia, 1996, no. 46, pp. 26–140; no. 47, pp. 23–120; no. 48, pp. 27–90.
22 chapter one
Individual Studies
As we have mentioned before, besides the institutional discussions,
several individual works also addressed the issue of futures trading and
derivatives. However, two different approaches characterized these stud-
ies. The first approach lays emphasis on the need to purify the conven-
tional types of futures trading contract in order to bring it in line with
Islamic principles. At the same time, it aims at rebutting some of the
criticisms raised by certain Muslim scholars against futures contracts.
The second approach, on the other hand, rejects the western types of
15
The Central Bank of Malaysia in its Annual Report (2000) stated that for the year
2000 the Islamic Banking sector registered a strong performance in tandem with the
continued improvement of the Malaysian economy. The market share of the Islamic
banking system increased to 6.9 percent during the year from 5.5 percent in 1999. (See
Nik Norzrul Thani, Legal Aspects of the Malaysian Financial System, Sweet & Maxwell
Asia, 2001, p. 165.). In the Gulf Cooperation Countries the market share is 5–10 per-
cent (see, Hossein Askari & Zamir Iqbal, “Opportunities in Emerging Islamic Financial
Market,” BNL Quarterly Review, 1995, p. 260.)
introduction, literature review 23
16
Muhammad Akram Khān, “Commodity Exchange and Stock Exchange in Islamic
Economy,” American Journal of Islamic Social Sciences, vol. 5, Issue no. 1, 1988, pp.
92–114.
24 chapter one
17
Sayyid Abdul Jabbār Shahhābudin, “Comments on Muhammad Akram Khān’s
Commodity Exchange and Stock Exchange in an Islamic Economy,” Journal of Islamic
Economics, International Islamic University Malaysia, vol. 1, issue 2, July 1988, pp.
71–76.
18
For a detailed discussion regarding the issue, see chapter 4 of the present study.
introduction, literature review 25
19
See the Islamic Fiqh Academy guideline for research papers to be submitted as part
of the forthcoming Encyclopedia of fiqh related to economic issues Majallat Majmaʾ
al-Fiqh al-Isālmī, no. 9, vol. 4, p. 766.
20
Yusouf Sulaimān, “Raiʾ al-Tashrīʿ al-Islāmī fi Masāʾil Burṣa h”, al-Mawsūʿaʾh
al-ʿIlmiyyah wa al-ʾAmaliyyah li al-Bunūk al-Islāmiyyah, Cairo, International Associa-
tion of Islamic Bank, vol. 5, pp. 428–443.
21
Bayt al-Tamwīl al-Kuwaiti, Al-Fatāwā al-Sharʿiyyah fi al-Masāʾil al-Iqtiṣādiyyah,
Kuwait, 1988, p. 528.
introduction, literature review 27
22
Al-Mawsūʿah ʿal-ʿIlmiyyah wa al-ʾAmaliyyah li al-Bunūk al-Islāmiyyah, Cairo,
International Association of Islamic Banks, vol. 5, pp. 444–451.
23
ʿAbd al-Karīm al-Khatīb, al-Siyāsah al-Māliyyah fi al-Islām wa Ṣilatuhā bi
al-Muʿamalāt al- Muʿāṣirah, Dār al-Fikr al-ʿArabī, Cairo, 1976.
24
Al-Jundī, Mohammad Shahhāt, Muʿamalāt al-Burṣah fi al-Sharīʿah al-Islāmiyyah,
Dār al-Nahdah al-ʿArabiyyah, Cairo, 1988.
25
Aḥmad Ḥ assan Muhyi al-Dīn, ʿAmal Sharikāt al-Istithsmār al-Islāmiyyah fi al-Sūq
al-ʿĀlamiyyah, Bank al-Barakah al-Islāmī li al-Istithmār, Bahrain, 1986, and Aswāq
al-Awrāq al-Māliyyah wa ʾĀthāruhā al, ʾInmāʾiyyah fi al-Iqtiṣad al-Isālmī, Dallah al-
Barakah, Jeddah, 1996.
26
Bayt al-Tamwīl al-Kuwaitī, Al-Fatāwā al-Sharʿiyyah fi al-Masāʾil al-Iqtiṣādiyyah,
p. 590.
28 chapter one
on decisive evidence, that is, the principle of ibāḥah, and this should
prevail unless there is decisive evidence to warrant the opposite.27
It is worth noting, however, that rejecting any prohibition based on
a solitary ḥadīth (āḥād ) is a dangerous precedent which may lead to
the rejection of the sunnah. Yet, there are some differences of opinion
about the acceptance of a solitary ḥadīth in the area of ʿaqīdah (belief and
creed) but not in muʿāmalāt (commercial transaction). Thus, it seems
that by adopting such a methodology Majd al-Dīn undermined some
of the credibility of his argument, although it is basically correct.
Another scholar who addressed the legality of futures trading in
Islamic law is Fahīm Khān in his book Islamic Futures and their Markets.28
However, unlike Kamālī, he limited himself just to futures contracts. The
study represents another approach in tackling the issue of futures mar-
kets from an Islamic perspective. Departing from the previous approach
adopted by some scholars, where the main focus was to identify the
non-Islamic elements in the futures market for modern commodities,
and to look for the Islamic alternative, Fahīm Khān preferred to choose
bayʾ al-salam [a sale or purchase of a deferred commodity for the pres-
ent price] as the basis for any Islamic futures market. Yet, he discussed
briefly istiṣnāʿ and juʿālah [(A party pays another a specified amount
of money as a fee for rendering a specific service in accordance to the
terms of the contract stipulated between the two parties.)] as possible
classical contracts with features of futures trading as well. He stressed
that “we are not looking forward to ‘Islamizing’ an intrinsically non-
Islamic activity, but instead we are trying to revert to our own traditions
to develop similar institutions that would not only bring the parallel
economic benefits to the society that they are meant to provide but that
will also be in line with Islamic legal framework.”29
However, it seems that such a methodology has little merit by itself
since “wisdom is the lost property of a Muslim who is its rightful owner
wherever he gets it.” The author submitted to the fact that even in his
approach to an Islamic futures market, the major structures of the
conventional futures market were still needed. Thus, there is a need for
establishing an exchange as a central place where buyers and sellers meet
27
See Bayt al-Tamwīl al-Kuwaitī, al-Fatāwā al-Sharʿiyyah fi al-Masāʾil al-ʾIqtiṣādiyyah,
al-Kuwait, 1985, pp. 527–545.
28
Fahīm Khān, Islamic Futures and their Markets with Special Reference to Their Role
in Rural Financial Market, Islamic Research and Training Institute, Islamic Development
Bank, Jeddah, Saudi Arabia, 1995.
29
Ibid.
introduction, literature review 29
30
Ibid., p. 46.
30 chapter one
31
See Samī Ḥ ammoud, “Ṣiyagh al-Tamwīl al-Islāmī Mazāyā wa ʿAqabāt kulli Ṣīghah,”
Abḥāth Nadwat Ishām al-Fikr al-Islāmī fi al-Iqtiṣād al-Muʿāṣir, held in Washington from
6–9 September 1988, International Institute of Islamic Thought, 1992, pp. 193–247.
introduction, literature review 31
32
Husein Salmon, “The Problem of Speculation in Stock Market from an Islamic
Perspective: Investment as an Alternative,” The First International Conference on Islamic
Management: Management of Economic Development in an Islamic Perspective, Jointly
Organized by the Islamic Development Management Project (IDMP), The School of
Social Sciences, University Sains, Malaysia, and the Islamic Research and Training
Institute affiliated to Islamic Development Bank (IDB), Jeddah, Saudi Arabia, from
8–10 December 1998, pp. 1–50.
33
See chapter 5 of the present study for more elaboration on the issue of speculation.
32 chapter one
34
Aḥmad El-Ashkar, “Towards an Islamic Stock Exchange in a Transitional Stage,”
Islamic Economic Studies, Islamic Development Bank, Jeddah, Saudi Arabia, vol. 3, no. 1,
December 1995, pp. 79–112.
35
Frank E. Vogel and Samuel Hayes, III, Islamic Law and Finance, Religion, Risk,
and Return, Kluwer Law International, The Hague, 1998, p. 114.
introduction, literature review 33
However, their discussion regarding the issue is very shallow and almost
followed the conservative approach. We may be able to understand the
reason behind this conservative approach if we examine their method-
ology in this area. For instance, they maintained that
Of course the most direct way to achieve the goal of risk management
would be a bold redirection in fiqh thinking (ijtihād ) drawing on new
interpretations of the revealed sources and of basic principles. This ijtihād
will declare what about risk management is legitimate in Islamic law, and
what is illegitimate. But . . . it is ordinarily the most conservative, literal
and legalistic approach that are followed in Islamic finance and accord-
ingly, . . . , we will follow only such an approach. While doing so, however,
we should try not to lose sight of the larger issue just sounded the proper
scope, if any, for risk management in Islamic law.36
At the end of their discussion on the sale of debt for debt, they con-
cluded that the general agreement among the scholars including Ibn
Taymiyyah is against the bilateral executory contract; the force of the
debt for debt maxim in this matter is unlikely to dissipate soon. They
went on to argue that recently two authors have argued for its reversal.
One did it on the ultimate ground of necessity,37 while another offered
more nuanced and challenging arguments. He argued that delayed
payment should be permitted in supply contracts until the goods are
delivered even for fungible goods or goods by description. Pointing
to the more liberal rules that apply to delay in contract with an ʿayn
(tangible property) on the one side, he argued that, first, the central
distinction between ʿayn and dayn (debt) should not rest on whether
the goods are unique, but on whether they already exist. Second, where
goods under a supply contract are continuously available in the market,
the contract should tolerate postponement of paying until the goods are
received, just as they would if the goods were ayn. The Maliki position
requiring payment delay in sales of absent ʿayn should apply to such
modern contracts.38
However, the point which we would like to make here is that to claim
that just two authors have argued for the reversal of the prohibition to
postponing both countervalues is out of touch with reality. Many Muslim
scholars have argued against this maxim, sometimes even before Nazīh
36
Ibid., pp. 154–155.
37
Nazīh Ḥ ammād, Bayʿ al kāliʾ bi al-kāliʾ, Markaz Abhāth al-Iqtiṣād al-Islāmī, Jāmiʿat
al-Malik ʿAbdul Azīz, Jeddah, Saudi Arabia, 1986, pp. 28–29.
38
ʿAbd al-Wahhāb abū Sulaimān, “ ʿAqd al-Tawrīd.” Unpublished paper. In the
forthcoming Mawsūʿat al-Muʿāmalāt al-fiqhiyyah, Islamic Fiqh Academy, OIC Jeddah,
as quoted by Vogel and Hayes, p. 87.
34 chapter one
Options Contracts
39
See, for instance, Kamālī’s study, “Islamic Commercial Law: An Analysis of
Futures,” American Journal of Islamic and Social Sciences, vol. 13, Summer 1996, no. 2,
pp. 201–203; and it seems that the authors are aware of his opinion on the issue. As
Kamālī mentioned in the acknowledgement of his manuscript, Islamic Commercial Law:
An Analysis of Futures and Options, Research Center International Islamic University,
he was invited by Vogel to deliver a lecture on Futures from the Islamic point of view
at Harvard University. Moreover, many other scholars’ writings in Arabic have argued
against this maxim, such as al-Ḍ arīr in his book al-Gharar wa ʾAtharuhū fi al-ʿUqūd,
Dallah al-Barakah Jeddah, 1995, pp. 329–336; Aḥmad Ḥ assan in his book ʿAmal Sharikāt
al-Istithmār al-Islāmiyyah fi al-Aswāq al-ʿĀlamiyyah, pp. 286–321; Rafīq al-Maṣri, in
his book al-Jamiʾ fi Uṣul al-Ribā, pp. 339–347; and Majd al-Dīn Azzām in his reply to
the fatwā of the Sharīʿah adviser of Kuwait Finance House; see al-Fatāwā al-Shar’iyyah
fi-al-Masāʾil al-Iqtiṣādiyyah pp. 539–545 and ʿIsāwi Aḥmad Isawi, “Bayʿ al-Dayn wa
Naqlihī,” Majallat al-Azhar, Cairo, no. 2, 1956, pp. 168–170.
40
Ibid., p. 223.
41
Ibid., pp. 225–226.
introduction, literature review 35
Institutional Studies
As mentioned earlier, the Islamic Fiqh Academy addressed the issue of
derivatives through El-Gārī’s paper in which he performed an analysis
on options. He compared options with khiyār al-sharṭ, salam, and bayʿ
al-ʿarbūn and concluded that:
42
Mohamed Ali El-Gārī, “al-Aswāq al-Mŭliyyah,” Majallat Majma’ al-Fiqh al-Islāmi,
1990, no. 6, vol. 2, pp. 1610–1617.
36 chapter one
43
Mohamed Ali El-Garī, “Toward an Islamic Stock Market, Islamic Economics
Studies, vol. 1, no. 1, December 1993, Islamic Research and Training Institute, Islamic
Development Bank, Jeddah, Saudi Arabia, pp. 1–20.
44
Institute of Islamic Banking and Insurance, Encyclopaedia of Islamic Banking and
Insurance, London, 1995, pp. 164–173.
introduction, literature review 37
not in need of these contracts in its economy.”45 For his part, al-Ḍ arīr
in the first sentence of his study on options said, “This is a new type of
contract and it is an illegal contract. . . .” He concluded, saying “There is
no need to look for alternatives to these transactions from the Islamic
point of view because it does not lead to any significant public interest
which needs to be safeguarded.”46
It is worth noting that a great deal of Islamic law is based on maṣlaḥah
(public interest) and need. However, it seems that the benefits of options,
as tools of risk management, had not been very well explained to these
jurists and scholars by the Muslim economists associated with the
Islamic Fiqh Academy. Accordingly, some of these jurists concluded
that the Muslim economy is not in need of these contracts.
It is clear that this attitude of prejudgment would not be of much
help in reaching a systematic and fair conclusion. Perhaps because of the
misgivings, the participants did not even make the effort to modify these
new types of contract or to look for an Islamic alternative. Moreover,
to think that options have no benefit at all is to deny an internation-
ally recognized reality.47 Still, it is possible to argue that despite their
benefits, options may involve high risk and harm, and, therefore, should
not be allowed in Islamic finance in their present form. But to exclude
them altogether is out of touch with reality. If there were no benefits in
options, one might ask why the issue has been raised from an Islamic
point of view by Muslim economists and financial institutions, such as
the Islamic Development Bank. Moreover, it should be taken into con-
sideration that the major part of the Muslim world economy is based
on commodities such as petroleum, cotton, palm oil, rubber, tin, etc.,
which are traded in futures markets whether in relation to forward,
futures, or options contracts.
Another example of these prohibitive attitudes, which may be behind
the Academy’s resolution, is seen when Sheikh al-Salāmī maintained in
his paper that options are just an expansion of gambling and new ways
to gain money without effort.48 This claim was also made by some other
45
Mohammad Mukhtār al-Salāmī, “al-Ikhtiyārāt,” Majallat Majma’ al-Fiqh al-Isālmī,
1992, no. 7, vol. 1, p. 241.
46
Ṣiddīq al-Ḍ arir, “al-Ikhtiyārāt,” Majallat Majmaʿ al-Fiqh al-Isālmī, 1992, no. 7,
vol. 1, p. 271.
47
See chapter 10 on the economic benefits of options.
48
Mohammad Mukhtār al-Salāmī, “al-Ikhtiyārāt,” Majallat Majma’ al-Fiqh al-Islāmī,
1992, no. 7, vol. 1, p. 235.
38 chapter one
Individual Studies
Among those who addressed the legality of options is Kamālī. He
reviewed some of the existing literature on options, addressing its short-
comings, especially that of ʿAbd al-Wahhāb Abū Sulaimān, “al-Ikhtiyārat:
Dirāsah Fiqhiyyah Taḥ līliyyah Muqārānā in “Majallat al-Buḥūth al-
Fiqhiyyah al-Muʿāṣirah,” and that of Aḥ mad Ḥ assan Muḥyi al-Dīn,
“ ʿAmal al-Sharikāt al-Istithmār al-Islāmiyyah Fi al-Sūq al-ʿĀlamiyyah.”
He compared options with khiyār al-sharṭ and bayʿ al-ʿarbūn. He also
discussed the issue of whether it is lawful to charge a fee for granting
an option and whether an option could be bought and sold as a valu-
able instrument in its own right. He concluded thus:
This analysis is affirmative not only on the parties’ freedom to insert
stipulations in contracts but also that a monetary compensation or a fee
may be asked by one who grants an option or a privilege to the other. If
the seller is entitled to stipulate for a security deposit or a pawn then it
is a mere extension of the same logic that he may charge the buyer and
impose a fee or compensation in respect of such options and stipulations
that are to the latter’s advantage. When the buyer, for example, stipulates
that he will ratify or revoke the contract within a week or a month, this
may well prove to be costly to the seller and he may therefore charge a fee/
compensation for granting the option. We thus conclude that options may
carry a premium and [there]should be, therefore, no objection to this.50
However, this argument will solve the problem only if we consider the
premium as part of the whole price of the underlying commodity and
that it cannot be traded separately. Still, although Kamālī’s argument
here is similar to that of the Ḥ anbalī school in allowing bayʿal-ʿarbūn,
and it will really fulfill some of the benefits of options, the question
49
Majallat Majma’ al-Fiqh al-Isālmī, 1992, no. 7, vol. 1, pp. 581–584.
50
Mohammad Hāshim Kamālī, Islamic Commercial law: an Analysis of Futures and
Options (unpublished manuscript), Research Center International Islamic University,
Malaysia, pp. 356–357.
introduction, literature review 39
51
Ibid., pp. 369–370.
40 chapter one
52
See Majallat Majamāʿ al-Fiqh al-Islāmī, no. 8, vol. 1, p. 641.
53
Mohammad Hāshim Kamālī, Islamic Commercial Law: An Analysis of Futures and
Options, pp. 270–271.
54
Al-Mawsūʿah ʿal-ʿIlmiyyah wa al-ʾAmaliyyah li al-Bunūk al-Islāmiyyah, Cairo,
International Association of Islamic Banks, vol. 5, pp. 4244–457.
55
Mohammed Obaidullah, “Islamic Options-Engineering Risk Management Solu-
tion,” New Horizon, Islamic Institute of Islamic Banks, London, May 1998, pp. 6–9 and
“Financial Engineering with Options,” Islamic Economic Studies, Islamic Development
Bank, Jeddah, Saudi Arabia, vol. 6, no. 1, November 1998, pp. 73–103.
56
Mohammed Obaidullah, “Istijrār: A Product of Islamic Financial Engineering,”
New Horizon, Islamic Institute of Islamic Banks, London, October 1997, pp. 3–8.
introduction, literature review 41
On the other hand, Aḥmad Muḥyī al-Dīn in his book, ʿAmal Sharikāt
al-Istithmār al- Islāmiyyah fi al-Sūq al-ʾĀlamiyyah,57 claimed that options
are illegal because they contradict the general principles of Islamic
commercial law. In addition, they do not fall within the purview of
khiyār al-sharṭ or its objectives. Moreover, they contradict the principle
of justice since the option holder will benefit from the loss of the one
who provided them. He added that such options are similar to the
illegal kind of options (al-shurūṭ al fāsidah) that have been rejected by
all schools of law. Finally, these kinds of contract are similar to some
contracts prohibited in Islam such as the combination of two contracts
in a single transaction (bayʿataini fi bayʿatin wāḥidah).
It should be noted that none of these objections is genuine or has a
strong link with the validity of options. However, we will discuss them
at their proper places later. Aḥmad Ḥ assan continued to maintain the
same argument in his book, Aswāq al-Awrāq al-Māliyyah wa ʾAthāruhā
al ʿInmaʾiyyah fi al-Iqtiṣād al-Islāmī. Aḥmad Ḥ assan was also very critical
of speculation, but acknowledged the need for market players who are
looking for price differentials to ensure liquidity in the market.58
On the other hand, Obiyathullah’s paper entitled “Derivative Instru-
ments and Islamic Finance: Thoughts for Reconsideration” addressed
the issue of derivative instruments, their evolution, their benefits, and
makes a case as to why they are needed. In addition, he discussed
salam and istijrār as Islamic financial instruments with features of
derivative instruments. He limited the scope of his article, saying “The
objective of this paper is not to reevaluate these instruments in the
light of the Sharīʾah, nor is it intended as a critical examination of
the juridical works of fuqahāʾ (Sharīʿah scholars). What is intended
here is to provide a deeper understanding and an appreciation of these
instruments: how they evolved, why they are needed, their diversity of
57
Aḥmad Ḥ assan Muhyi al-Dīn, ʿAmal Sharikāt al-Istithsmār al-Islāmiyyah fi al-Sūq
al-ʿĀlamiyyah, Bank al-Barakah al-Islāmī li al-Istithmār, Bahrain, 1986, and Aswāq
al-Awrāq al-Māliyyah wa ʾAthāruhā al, ’Inmāʾiyyah fi al-Iqtiṣad al-Isālmī, Dallah al-
Barakah, Jeddah, 1996.
58
Aḥmad Ḥ assan Muhyi al-Dīn, ʿAmal Sharikāt al-Istithsmār al-Islāmiyyah fi al-Sūq
al-ʿĀlamiyyah, Bank al-Barakah al-Islāmī li al-Istithmār, Bahrain, 1986, and Aswāq
al-Awrāq al-Māliyyah wa ʾAthāruhā al, ʾInmāʾiyyah fi al-Iqtiṣad al-Isālmī, Dallah al-
Barakah, Jeddah, 1996.
42 chapter one
use, and the serious handicap that could be posed to Islamic businesses
from ignoring them.”59
Vogel’s and Hays’ study explored the possibility of options through
khiyār al-sharṭ and bayʿ al-ʿarbūn. It concluded that khiyār al-sharṭ or
the stipulation of an option has little apparent significance for the cre-
ation of Islamically valid derivatives, since the party giving the option
cannot be compensated for doing so; thus, the option right itself is not
paid for. Its significance is rather a vital analogy, and a background set
of rules and principles for ʿarbūn.60 Regarding ʿarbūn itself, the study
concluded that of all Islamic contracts, ʿarbūn offers the closest analogy
to options. However, they acknowledged that classical law gives little
hope for the approval of the option contract. Rather, it poses a series
of objections, of which the following are the most important.
59
Obiyathulla Ismath Bacha, “Derivative Instruments and Islamic Finance: Some
Thoughts for a Reconsideration”, Unpublished Paper, International Islamic University,
Malaysia, November, 1997, p. 7.
60
Frank E. Vogel and Samuel Hayes, III, Islamic Law and Finance Religion, Risk,
and Return, p. 156.
introduction, literature review 43
61
Ibid., pp. 264–5.
CHAPTER TWO
1
Philippe Jorion and Marcos De Silva, The Importance of Derivatives Securities Mar-
kets to Modern Finance, Catalyst Institute (Chicago: Catalyst Institute), p. 222.
2
Anthony F. Herbst, Commodity Futures Markets, Methods of Analysis, and Manage-
ment of Risk, John Wiley and Sons, United States, 1986, p. 3.
the forward commodities market 45
inventory to last him for the next six months but will need to replen-
ish his inventory in six months with 120 tons. Though simplified, this
is a very common business situation. We have a producer who will
have product available at a future date and a consumer who will need
the product in the future. Clearly, both parties face risk, essentially
price risk. While the farmer will be fearful of a fall in the spot price
of cocoa between now and six months from now, the confectioner will
be susceptible to an increase in the spot price. Thus, both parties face
risk, but in the opposite direction. It would be logical for both par-
ties to meet, negotiate, and agree on a price at which the transaction
can be carried out in six months. Once the terms are formalized and
documented, we have a forward contract accruing to both parties. Both
parties, because of the forward contract, have eliminated all price risk.
The farmer now knows the price he will receive for his cocoa regardless
of what happens to cocoa prices over the six months. The confectioner
too has eliminated price risk since he will only have to pay the agreed
upon price, regardless of spot prices in the next six months. There is a
second benefit to this. Since both parties have “locked-in” their price/
cost, they would be in a much better position to plan their business
activities. For example, the confectioner can confidently quote to his
customers the price at which he delivers them products in the future.
This would not have been possible if he were uncertain about his input
price. The benefits of a forward contract, therefore, are often more than
merely hedging price risk.3
3
See Obiyathulla Ismath Bacha, “Derivative Instruments and Islamic Finance: Some
Thoughts for a Reconsideration,” p. 3.
4
ʿAbd al-Wahhāb Abū Sulaimān ʿAqd al-Tawrīd Dirāsh Fiqhiyyah Taḥlilīyyah” paper
presented to the twelfth session of the Islamic Fiqh Academy, Rabat, Morocco, p. 7.
46 chapter two
5
Ḥ asan al-Jawāhirī, “Uqūd al-Tawrīd wa al-Munāqaṣāt” paper presented at the
twelfth session of the Islamic Fiqh Academy, Rabat, Morocco, p. 3.
6
See Mukhtar al-Salāmī, “Ta’jīl al-Badalayn fi al-‘Uqūd,” paper presented in Nadwāt
al-Barakah al-Tāsia‘h ʿasharah lil iqtiṣād al-Islāmī, Makkah al-Mukarramah, 2–3
December 2000, p. 5.
7
Ibn Taymiyyah, Nazariyyat al-ʿAqd, p. 235.
8
Ibn Qayyim, I’lām al-Muwaqq‘in an Rab al-ʿĀlamīn, vol. 3, p. 9.
the forward commodities market 47
into a contract without having interest in it. Therefore, if the two parties
have no real interest in this contract they would not have concluded it
from the beginning.9
Moreover, as Aḥmad Ḥ assan rightly pointed out, it is likely that there
was no benefit for such contracts at the time of Ibn Taimiyyah and Ibn
Qayyim. They rejected this contract only on these grounds10 and not
on any other genuine legal grounds. We have already shown that this
contract does have benefits. Aḥmad Ḥ assan stressed that the global
material development brought about new economic transactions, which
were unknown to early Muslim jurists. Therefore, the trend of judging
such a contract as illegal without any strong legal basis is against the
objectives of the sharīʿah. We do believe that any contract in Islamic law
should fulfill the following conditions to be considered as legal:
9
al-Ḍ arīr, al-Gharar wa Atharuhu fi al-‘Uqūd, p. 316.
10
Aḥmad Ḥ assan Muhyī al-Dīn, ʿAmal Sharikāt al-Istithmār al-Islāmiyyah fi al’Aswāq
al-ʿĀlamiyyah, Bank al-Barakah al-Islāmī li al-Istithmār, Bahrain, 1986, p. 320.
11
Ibid., pp. 320–321.
12
Aḥmad Ḥ assan Muhyi al-Din, ʿAswāq al-ʿAwrāq al-Māliyyah wa Atharuha
al-Inmāʾiyyah fi al-Iqtiṣād al Islāmī, p. 323.
48 chapter two
contracts and stock index futures contracts are excluded from the begin-
ning from the Islamic alternative, there are no grounds for objection.
Isāwī Aḥmad also refuted the claim that there is no benefit in the
forward contract. It is not acceptable because traders and manufactur-
ers always compete in trading their products. Thus, if a manufacturer
would like to guarantee the sale of his product, he will enter into an
agreement with a buyer on the condition that he will receive the price
later when the commodity sold is presented. The trader on his part may
be in need of a specific commodity but he has no money for the time
being. If he has to wait until he gets the money, another trader may take
the commodity in question before him. Therefore, to avoid this risk he
has to enter into the deal with the condition that he will pay the price
at the time he receives the goods. In such a deal both payment for and
delivery of the commodity have been deferred but there is a real interest
involved. Thus, the postponement of both payment and commodity is
lawful except in the case of currency trading. Moreover, we have some
cases in which both countervalues have been deferred but the transac-
tion is still considered valid in Islamic law, such as the case of ijārah
(lease) and juʿālah. In both cases, a person may request another person
to do something for him in exchange for a charge which will be paid
to him after the job has been accomplished. Therefore, the contract in
which both countervalues have been deferred (the forward contract)
is a legal contract if it does not involve ribā (interest) or gharar13 (risk-
taking). Similar objections to Ibn Taimiyyah’s opinion are advanced
by Sheikh Mukhtār al-Salāmī,14 Sheikh Aḥmad ʿAli ʿAbd Allāh,15 and
Sheikh Ḥ asan al-Jawāhirī.16
However, the forward contract as a trading instrument in its actual
form has no exact counterpart in Islamic law. Some scholars have
drawn a similarity between the forward contract and bayʿ al-salam on
the one hand and bayʿ al-istiṣnāʿ on the other. Furthermore, some have
tried to establish the legality of this contract under bayʿ al-ṣifah (sale
by description). Therefore, we have to look into the points of similarity
and difference between salam (contract of future sale) and istiṣnāʿ on
13
Isawi Aḥmad, “Bayʿ al-Dayn wa Naqlihi,” pp. 169–170.
14
See Mukhtār al-Salāmī, “Taʾjīl al-Badalain fi al-ʿUqūd,” paper presented in Nad-
wat al-Barakah al-Tāsiaʿh ʿasharah lil iqtiṣād al-Islāmī, Makkah al-Mukarramah, 2–3
December 2000, p. 3.
15
Aḥmad ʿAli ʿAbd Allāh, “al-Bayʿ ʿalā al-Ṣifah,” paper presented in Nadwat Bank
al-Shamāl litaʾsīl al-ʿAmal al-Maṣrifī, 20–21 June, 1997, Sudan, p. 4.
16
Ḥ asan al-Jawāhirī, “Uqūd al-Tawrīd wa al-Munāqaṣāt,” p. 5.
the forward commodities market 49
one hand, and the modern forward contract on the other. Meanwhile,
if it could be accommodated under the category bayʿ al-ṣifah then what
are the similarities and differences between the two contracts? However,
if we consider the forward contract as a new type of contract, then, we
need to study it within the general principles of Islamic commercial law.
Moreover, we have to look into the authenticity of the arguments posed
against it, such as the claim that it is a kind of bayʿ al-kāliʾ bi al-kāliʾ,
that is, the sale of what one does not possess, the sale of m’adūm (non-
existent), and the claim that there is no benefit in such a contract.
17
Sudin Haron and Bala Shanmugan, Islamic Banking System Concept and Applica-
tion, Pelanduk Publications, Kuala Lumpur, 1997, p. 180.
50 chapter two
18
See Zamīr Iqbāl, “Financial Innovation in Islamic Banking,” Journal of Islamic
Banking and Finance, The International Association of Islamic Banks, Karachi (Asian
Region), vol. 15, no. 2, April–June 1998, pp. 12–13.
19
See Islamic Fiqh Academy’s resolution no. 2, 6th session, 1990.
20
Ibn ʿAbidin, Ḥ āshiyat Rad al-Muḥ tār, al-Bābī al-Ḥ alabī, Cairo, 1966, p. 209.
the forward commodities market 51
This last condition is not a point entirely agreed upon among the differ-
ent schools of Islamic law and it is this condition which may prevent
salam from playing a parallel role to the modern forward contract in the
commodities market. According to the Ḥ anafīs, Shaf ʿiīs and Ḥ anbalīs
payment of the principal should not be delayed beyond the time the
contact is signed. Their justification for this is that delay of both com-
modity and principal is in fact a sale of debt for debt, which is prohibited
in the sharīʿah.23 Moreover, the principal must be paid in advance if the
very objective of salam is to be fulfilled.24 On the other hand, the Mālikīs
disagree with regard to the permissibility of delaying the price of salam.
Delay of payment according to them is possible as follows:
21
Fahīm Khān, Islamic Futures and Their Market, Research Paper no. 32, Islamic
Research and Training Institute p. 14; also see Obiyathulla Ismath Bacha “Derivative
Instruments and Islamic Finance: Some Thoughts for a Reconsideration,” Unpublished
Paper, International Islamic University Malaysia, November, 1997, p. 18.
22
Ṣiddīq al-Ḍ arīr, “al-Salam wa Tatbīqātuhu al-Muʿāṣirah,” Majallat Majmaʿ al-Fiqh
al-Islāmī, ninth session, 1996, no. 9, vol. 1 p. 379–383; Nazīh Ḥ ammād, “al-Salam wa
taṭbiqātuhu al-Muʿāṣirah,” Majallat Majmaʿ al-Fiqh al-Islāmī, ninth session, 1996, no. 9
vol. 1, pp. 553–555.
23
The notion of prohibition of sale of debt for debt is widely cited as grounds to
invalidate numerous kinds of transactions. However, in reality there is nothing in the
sharīʿah, which prohibits the sale of debt for debt unless it involves ribā or high risk
(gharar). The present study will dedicate a special chapter to investigate and analyze
critically the arguments and opinions concerning the sale of debt for debt.
24
See for instance Ibn al-Humām, Sharḥ Fatḥ al-Qadīr, al-Matba’ah al-Amīriyyah,
Egypt, 1937, vol. 5, p. 337; Al-Nawawī, al-Majmūʿ, vol. 9, p. 208. In Qudāmah, al-Muqhnī,
vol. 4, p. 324; Ibn Ḥ azm, al-Muḥ allā, vol. 9, p. 109.
52 chapter two
25
For more details about the Mālikī’s opinion see al-Ḥ attab, Mawāhīb al-Jalīl li-Sharḥ
Mukhtaṣar Khalīl, Mustaphā al-Ḥ alabī, vol. 4, pp. 514–517; al-Khirshi, Sharḥ al-Khirshī
ʿalā Mukhtaṣar Khalīl, Dār Ṣādir, Beirūt, vol. 5, pp. 202–203, and Ibn Rushd, Bidāyat
al- Mujtahid, vol. 2, p. 202.
26
Al-Ḍ arīr, Al-Gharar wa Atharuhu fi al-‘Uqūd, pp. 461–462.
27
Imām Mālik, al-Mudawwanah, vol. 3, p. 370.
28
Ibn ʿĀbidīn, Rad al-Muḥ tārʿalā al-Dur al-Muqhtār, al-Bābī al-Ḥ alabī, Cairo, vol. 4,
p. 288.
the forward commodities market 53
the term sale rather than salam or salaf, then it is not necessary that
the price should be paid immediately.29 Despite the weakness of this
differentiation, it does prove that the mere deferment of both counter-
values is not ḥ arām (prohibited). The following table summarizes the
opinion of the major schools on the conditions of salam.
It can be deduced from the above arguments that these scholars, espe-
cially the Mālikīs, regard the deferment of the price in salam as neither
involving ribā nor gharar, which nullify a contract. Therefore, all these
arguments about the prohibition of the deferment of both countervalues
in a contract are based on the weak ḥ adīth about bayʿ al-kāliʾ bi al-kāliʾ.
One may ask why the Mālikīs, for instance, departed from the “general
principles” and allowed deferment for three days? Some may argue that
29
Al-Shirāzī, al-Muhadhdhab, Maktab al-Bābi al-Halabi, Cairo, 1976, vol. 1, p. 392.
54 chapter two
this is not in essence a departure from the “general principles,” but just
an application of the maxim ma qārab al-shaiʾ yuʾtā ḥ ukmahu, which
means whenever a case is very close to another they could be given
the same rule. Therefore, a deferment of just three days may not be
considered a real deferment. However, if the deferment of the price in
salam can really lead to ribā or gharar, then could it be argued whether
it is possible to allow it for one hour or one day and at best for three
days? The answer is clear. Ribā or gharar cannot be allowed either for
three days or more or less.
We may note here that one of the sources of misconception about
the legality of deferring both countervalues is an opinion reported from
Ibn ʿAbbās in connection with āyat al-Mudāyanāh to the effect that this
verse is concerned with salam and since at this time, salam means the
deferment of one of the countervalues, some scholars tried to confine
the general meaning of the verse to the interpretation of Ibn ʿAbbās
while others have a somewhat more liberal approach.30 After analyz-
ing the different arguments on the issue, Kamālī maintained that the
ʿUlamāʿ (Shariʿah scholars) have held different views with regard to their
interpretation of the word dayn. While some have confined dayn (debt)
to certain types of debt, others have applied it generally to all deferred
liability transactions that can fall within its broad meaning. The Qurʾān
has evidently not specified the general meaning of dayn or tadāyantun
(debt or debt exchange) and there is no compelling evidence to warrant
a departure from this position. The preferred view would thus appear
to be that the general language of the text should convey its general
and unqualified meaning. Even if we admit Ibn ʿAbbās’s interpretation,
it may be said that it was based on the occasion of revelation (sha’n
al-nuzūl ) of the ayah. According to the general rules of uṣūl al-fiqh,
the sha’n al-nuzūl (the occasion of revelation) of a text may be specific
but that does not necessarily restrict the general purport and ruling of
the text.
Kamālī continues his argument concluding that even if the text is
revealed concerning salam, the language of the text is general and
applies to all debts, which would imply the basic legality of deferred
transactions in all its varieties in the sharīʿah, provided, of course, that
30
For more detail, see chapter 6 on the sale of debt for debt.
the forward commodities market 55
none of the principles of the Qurʾān and sunnah on such other themes
as usury, gambling, and gharar are violated.31
Another misconception related to salam is the claim that it is allowed
against the qiyās and the norms of Islamic law. This is because it is
the sale of what one does not possess and the sale of the nonexistent.
Therefore, it involves gharar. However, since there is a specific ḥadīth
from the Prophet about its legality it could be deduced that it is allowed
as an exception.32
However, this argument is rebutted by some classical scholars, such as
Ibn Taymiyyah, Ibn Qayyim, and Ibn Ḥ azm as well as some prominent
contemporary Muslim scholars. Before giving the legal arguments it is
appropriate to mention the relevance of salam to our discussion on for-
ward trading. Since salam is the closest contract approved or permitted
by the explicit sunnah of the Prophet, we are in need of extending this
permissibility to the modern type of forward contract by way of qiyās
or analogy. However, such qiyās would be impossible if we consider
the permissibility of salam as an exception and against the norm. For
a valid analogy, according to the commonly agreed principle of Islamic
jurisprudence, the ʾasl or the principle should not be allowed by way
of exception.33 Therefore, any analogy with salam in this regard will be
in violation of this principle.
In refuting the claim that salam is admitted against the norms of
the sharīʿah or against qiyās al-Ḍ arīr, for instance, said: “The right
interpretation here is the one advocated by Ibn Taymiyyah and Ibn
Qayyim. According to them, there is nothing in the sharīah which is
against qiyās. Moreover, everything which is supposed to be against
qiyās is in fact inseparable from one of two things: either the qiyās
or analogy itself is not valid, or there is no textual evidence to prove
that the rule under discussion is from the sharīʿah, because a genuine
qiyās represents the justice for which Allah (s.w.t.) has sent His Mes-
senger. Therefore, there is nothing in the sharīʿah which contradicts a
genuine qiyās.” Based on this principle, al-Ḍ arīr added that it could be
concluded that salam is in line with a qiyās, and the qiyās upon which
31
See Kamālī, Islamic Commercial Law: An Analysis of Futures and Options, p. 255.
32
See, for instance, Al-ʿAynī, ‘Umdat al-Qārī Sharḥ Saḥ īḥ al-Bukhārī, vol. 12, pp.
61–63; Al-Shawkānī, Nayl al-Awtār, vol. 5, p. 239.
33
Ibid., vol. 5, p. 235.
56 chapter two
34
Ṣiddīq al-Ḍ arīr, “al-Salam wa Tatbīqātuhu al-Muʿāṣirah,” pp. 379–383.
35
Ibn Qayyīm, ʿIlām al-Muwaqqʿīn an Rab al-ʿĀlamīn, vol. 1, p. 350.
36
Ibn Ḥ ajar, Fatḥ al-Bārī, Maktabat al-Kulliyāt al-Azhariyyah, vol. 9, p. 305.
37
Izz Al-Dīn Ibn ʿAbd al-Salām, Qawā‘id al-Aḥ kām fi Masālīh al-Anām, Maktabat
al-Kulliyāt al-Azhariyyah, Cairo, 1968, vol. 2, pp. 111–112.
38
Nazīh Ḥ ammād, “al-Salam wa taṭbiqātuhu al-Muʿāṣirah,” pp. 553–555.
39
Majmaʿ al-Fiqh al-Islāmī, Majallat Majmaʿ al-Fiqh al-Islāmī (discussions about
salam) ninth session, 1996, no. 9, vol. 1, p. 643.
40
al-Ḍ arīr, Al-Gharar wa ʿAtharuhu fi al-‘Uqūd, p. 461.
41
It is the equivalent of personality in positive law receptacles for the capacity for
acquisition.
42
Ibn Ḥ ajar, Fatḥ al-Bārī, Maktab al-Kulliyat al-Azhāriyyah, Cairo, 1978, vol. 9, p. 303.
the forward commodities market 57
• There is no explicit hadith (naṣ) which states that the price of salam
must be paid at the formation of the salam contract.
• Muslim scholars relied on the ‘ḥ adīth’ of bayʿ al-kāliʾ bi al-kāliʾ, which
prohibits the sale of debt for debt, to stipulate it as a condition in
salam that the price of salam must be paid in advance to avoid the
possibility of salam becoming a kind sale of debt for debt. However,
it should be noted that the ḥ adīth of bayʿ al-kāliʾ bi al-kāliʾ is not
directly connected to salam. It is about a general principle extended
through jurisprudential analysis to the case of salam.
• It is agreed among Shariah scholars that the ḥ adīth bayʿ al-kāliʾ bi
al-kāliʾ is weak and, therefore, could not be the basis for a genuine
argument.
• Even the claim that that an ijmāʿ (consensus of Muslim scholars in
specific issue) had materialized on the issue is also disputed.
• It is most probable that Muslim scholars also relied on the tradition-
ally conceived concept of salam as practiced at that time where the
price shall be paid in advance. However, this traditionally conceived
concept of salam by which the price of salam must be paid in advance
is also contested. For instance, Ibn Hajar in his definition of salam
stated that “It is the sale of something prescribed in the dhimmah.”.
He added that the phrase that “on condition that the price is paid
43
Ibn ʿAbd al-Bar, al-Kāfī, vol. 2, p. 4.
58 chapter two
44
See Ibn Ḥ ajar al-Asqalānī. Fatḥ al-Bārī. bi Sharḥ Saḥīḥ al-Bukhāri, Maktab
al-Kulliyāt al-Azhāriyyah, vol. 9, p. 305. Dasūqī, Mohammad Ibn Aḥmad Ibn ʿArafah
(n.d.) Ḥ āshiyat al-Dasūqi ʿalā al-Sharḥ al-Kabīr, vol. 3, p. 197. Ibn Rushd., Moham-
mad Ibn Aḥmad. Bidāyat al-Mujtahid wa Nihāyat al-Muqtaṣid, vol. 2, p. 204. Nihāyat
al-Muhtāj, vol. 4, p. 187. al- Fatāwāal-Hindiyyah, vol. 3, p. 187.
45
See Ibn Rushd., Mohammad Ibn Aḥ mad. Bidāyat al-Mujtahid wa Nihāyat
al-Muqtaṣid, vol. 2, p. 202; Ibn Qudāmah, Muwaffāq al-Dīn al-Mughnī. vol. 4, p. 328;
Ṣiddīq al-Ḍ arīr. 1996. “al-Salam wa Tatbiqatuhu al-Muʿasirah”, Majallat Majmaʿ al-Fiqh
al-Islāmī, ninth session.9 (1) vol. 1, pp. 392; Mohammad al- Mukhtār al- Salāmī. 2000.
“Ta’jīl al-Badalayn fi al-‘Uqūd” Nadwat al-Barakah, no. 19, 2000, pp. 2–5.
the forward commodities market 59
Thus, a standard salam contract does not involve gharar despite the
deferment of the subject matter because it is allowed by the Shariah
as a standard rule, not an exception, and therefore there is no gharar.46
In addition, as it is well explained by al-Darir, Muslim scholars agree
that “even if there is a level of gharar in a specific contact and there
is a real need for this contract this gharar would be tolerated and it
will not invalidate the contract.”47
• The possible justification to this limitation of three days by the Malikis,
in the case of salam in commodity and not in ṣarf, is primarily the
application of the maxim ma qārab al-shai’ yu’tā ḥ ukmahu, which
means that whenever a case is very close to another they could be
given the same rule. First of all, the Malikis consider the sale of debt
for debt where both countervalues are deferred as the weaker form
of the sale of debt for debt for the simple reason that there is no pos-
sibility of riba in this case. Second, gharar is less in this case than it
is in other cases of sale of debt. Another possibility is the prevailing
custom. Thus, Ibn Shas, a Maliki scholar said “It is not permissible to
include khiyār al-sharṭ in currency exchange. However, it is permis-
sible in salam for a delay in payment of two or three days because
he (the buyer) may need to consult others for a period during which
the subject matter will not be affected by any change. Otherwise, the
transaction will be a kind of bayʿ al-kāliʾ bi al-kāliʾ.”48 Therefore, it is
clear that “The condition that the price of salam should be paid at
the formation of the contract is stipulated by early scholars in line
with their economic conditions” as rightly observed by Mukhtar al-
Salami.49
• On the other hand, the Maliki’s option to delay the price of salam for
three days seems to be a subjective limitation. Why three days and
not one day or even twenty or thirty days? Does this differ from one
salam contact to another salam contact? Is this different from one
46
See Ibn Qayyīm, ‘Ilam al-Muwaqq‘in an Rab al-ʿAlamin, vol. 1 p. 350; Ibn Ḥ ajar
al-Asqalānī. Fatḥ al-Bārī. bi Sharḥ Saḥīḥ al-Bukhāri, Maktab al-Kulliyāt al-Azhāriyyah,
vol. 9, p. 305; ‘Izz Al-Dīn Ibn ʿAbd al-Salām. 1968. Qawā‘id al-Aḥ kām fi Maṣālīḥ al-Anām.
vol. 2, pp. 111–112; Nazīh Ḥ ammād. 1996. “al-Salam wa Taṭbiqātuhu al-Muʿāṣirah”,
Majallat Majmaʿ al-Fiqh al-Islāmī, pp. 553–555; Majmaʿ al-Fiqh al-Islamī, Majallat
Majmaʿ al-Fiqh al-Islamī, (discussions about salam), ninth session, 1996, no. 9, vol. 1,
p. 643; Ṣiddīq al-Ḍ arīr (1995), Al-Gharar wa Atharuhu fi al ‘Uqūd, p. 461.
47
See Majallat Majmaʿ al-Fiqh al-Islāmī, no. 9, vol. 2, p. 325 & pp. 333–334; Ibn
Qudāmah, al-Mughnī, vol. 4, p. 326; Ibn Abidin, Ḥ ashiyat Ibn Abidīn, vol. 4, p. 284.
48
See Ibn Shas, al-Jawahir al-Thaminah, vol. 2, p. 461.
49
See Majallat Majmaʿ al-Fiqh al-Islāmī, 1996, no. 9, vol. 234.
60 chapter two
Based on the above argument and the fact that salam is in line with
qiyās and not against it, we could say that the modern forward contract
is a valid contract by way of analogy to salam.
50
See al-Hattab, Mawahib al-Jalil Sharh Mukhtasar Khalil, Maktabat al-Najat, vol. 4,
pp. 514–517; al-Khirshi ala Mukhtasar Khalil, Dar Sadir Beirut, vol. 5, pp. 202–204.
51
al-Ashqar, “Aqd al-Salam” in Buhūth Fiqhiyyah fi Qadāyā Iqtisādiyyah Muʿasirah,
Dār al-Nafāʾis, 1998, vol. 1, p. 193.
the forward commodities market 61
Besides salam, the conventional forward contract has also some simi-
larities with the contract of istiṣnāʿ, which is a contract for selling a
manufacturable thing with an undertaking by the seller to present it
manufactured from his own material, with specified descriptions and at a
determined price.52 As in the case of salam, for the contract of istiṣnāʿ to
be legal, several conditions should be fulfilled. Those conditions are:
52
Muṣtaphā al-Zarqā, ʿAqd al-Istiṣnāʿ wa madā Ahammiyatuhu fi al-Istithmārāt
al-Muʿāṣirah, (Lecturer series of renowned scholars no. 12.), Jeddah Islamic Develop-
ment Bank, 1995, p. 12.
53
See Islamic Fiqh Academy’s resolution no. 66 /3/7 on istiṣnā‘; Muṣtaphā al-Zarqā
ʿAqd al- istiṣnāʿ wa madā ahammiyatuhu fi al-Istithmārāt al-Islāmiyah al-Muʿāṣirah,
Islamic Development Bank, Jeddah, 1995, p. 11; Muhammad al-Bashīr Muhammad
al-Amine, Istiṣnāʿ in Islamic Banking and Finance: The Law and Practice, A.S. Nordin,
Kuala-Lumpur, Malaysia, 2001, pp. 48–53.
54
Ibid.
62 chapter two
by the law of bayʿ al-salam.55 Thus, in this transaction istiṣnāʿ and salam
achieved some of the benefits of the conventional forward contract.
However, this may not be always the case and there is a need for the
adoption of the forward contract in Islamic finance.
The sale of debt for debt, called by the Mālikīs ibtidāʾ al- dayn bi al-
dayn (deferment of both countervalues), is at the core of forward trad-
ing. Therefore, we shall try to discuss it briefly here while deferring the
detailed discussion on debt trading to our analysis of bayʿ al- dayn bi
al- dayn in general. The different schools of law have prohibited this
form of sale of debt, for various reasons. For some the sale involves
ribā while for others it is gharar. The Mālikīs consider this form of bayʿ
al- dayn bi al- dayn as one of the lesser evils.56
Rafīq al-Maṣrī, for instance, argued that no extra gharar is involved
in deferring both countervalues compared to the deferment of one of
them only. In other words, if one of the countervalues has been deliv-
ered while the other is deferred for a future date or both of them are
deferred, the level of risk is the same and there is no possibility of extra
gharar. Let us assume a case where a buyer receives a commodity but
defers the payment of the price; there is a possibility that during this
period the price of the commodity may fluctuate. Therefore, one of the
parties will bear the impact of this fluctuation. It could be the seller if
the spot price goes up or the buyer if the opposite happens. This is what
always occurs in the case of salam. The risk will be the same even if both
countervalues are deferred. Of course, in the case of deferment of just
one countervalue, one of the parties to the contract will benefit from
his receipt either of the commodity in the deferred sale or the price in
the case of salam. However, the gharar remains the same, even if both
countervalues have been deferred. Both parties will share the instant
55
See Muhammad Akram Khān, “Commodity Exchange and Stock Exchange in
Islamic Economy,” American Journal of Islamic Social Science, vol. 5, issue. 1, 1988,
pp. 96–97.
56
See for instance, al-Jaṣṣaṣ, Aḥ kām al-Qurʾān, Dār al-Fikr, Beirut, vol. 1, p. 483;
al-Shāfīi, al-ʾUmm, al-Shaʿab, Cairo, vol. 3, p. 87; al-Nawawī, al-Majmūʿ, vol. 9, p. 435.
Ibn Taymiyyah, al-Qiyās, Dār al-Āfāq al-Jadīdah, Beirut, 1982, p. 16.
64 chapter two
57
For more details, see Rafīq al-Maṣrī, al-Jāmiʿ fiʾUṣūl al-Ribā, Dār al-Qalam,
Damascus, 1991, pp. 339–344.
58
Ibid., pp. 346–347.
the forward commodities market 65
objective of paying the cost at the time of the contract in salam, which
is to finance the seller.
Refuting the claim of involvement of gharar that might lead to dis-
pute due to the deferment of both countervalues, Mukhtār al-Salāmī
observed that the basic possibility of dispute is present in all forms of
transactions, which did not render these transactions invalid. However,
if it is argued that the possibility of dispute is higher in the case of the
deferment of both countervalues, then this is not true. The contracting
parties will specify clearly the price and the subject matter in a written
agreement. Therefore, the possibility of dispute is minimal and the his-
tory of transactions in the future contracts market testifies to that.59
It should be noted in this connection that the very conservative view
taken by the majority of classical Muslim scholars is based on their
misconception that a salam contract is admitted or legalized against
the norms or qiyās.60
Bayʿ al-ṣifah is the sale of something, well described, that is not pres-
ent at the time of contract but will be delivered in future.61 Although
the sale by description or bayʿ al-ṣifah is accepted by the Ḥ anafīs62 and
Ḥ anbalīs,63 the approach taken by the Mālikīs64 is more in line with our
analogy between bayʿ al-ṣifah and the forward contract. The Ḥ anafīs
validate the sale by description or bayʿ al-ṣifah and they guarantee the
buyer the option of inspection (khiyār al-ru’yah) whether the subject
matter of the contract is presented according to the agreed upon condi-
tions or not.65 On the other hand, the Mālikīs and Ḥ anbalīs guarantee
59
Mukhtār al-Salāmī, “Taʾjīl al-Badalain fi al-‘Uqūd,” paper presented in Nadwat
al-Barakah al-Tāsiaʿh ʿAsharah lil iqtiṣād al-Islāmī, Makkah al-Mukarramah, 2–3
December 2000, p. 3.
60
Al-Kāsānī, Badāii al-Sanāii, al-Matbʿah al-Jamāliyyah, Egypt, 1967, vol. 5, p. 201;
Ibn Rushd, Bidāyat al-Mujtahid wa Nihāyat al-Muqtaṣid, Dār al-Kutub al-Ḥ adīthah,
Egypt, vol. 2, p. 228; and al-Buhūtī, Sharḥ Muntahā al-Irādāt, Egypt, vol. 2, pp. 218– 221.
61
See Ibn Rusd, al-Muqaddimāt al-Mumahhadāt, Beirut, Dār al-Gharb al-Islāmī,
1988, vol. 2, p. 76.
62
See Ibn ʿĀbidīn, Rad al-Muḥ tār ʿalā al-Dur al-Mukhtār, Dar al-Kutub al-‘Ilmiyyah,
Beirut, vol. 4, p. 21.
63
al-Buhūtī, Sharḥ Muntahā al-Irādāt, Egypt, vol. 2, pp. 218–221.
64
Al-Dirdīr, al-Sharḥ al-Kabīr ʿalā Khalīl, Beirut, Dār al-Fikr, Beirut, vol. 3, p. 27.
65
Ibid.
66 chapter two
the buyer the right to khiyār al-ru’yah only when the commodity is
presented without fulfillling the conditions required.66 However, the
Mālikīs and Ḥ anbalīs differ in the mode of payment. It is a principle
in the Mālikī school67 that the price must not be paid at the time of the
conclusion of the contract in contrast to the principle in the Ḥ anbalī
school.68 Moreover, according to the Mālikīs, bayʿ al-ṣifah is permissible
in everything, while the Ḥ anbalī school restricts it to what is permissible
in salam only. The above concept of bayʿ al-ṣifah in the Mālikī school
is in line with our analogy.
On the possibility of accommodating the conventional forward con-
tract as a kind of bayʿ al-ṣifah, ʿAbd al-Wahhāb Abū Sulaimān main-
tained that first, bayʿ al-ṣifah and then, the forward contract, are based
on a detailed description of the subject matter, relying on previous
observation. Second, in both contracts the subject matter is absent
and the parties have a real intention to fulfill the contract and want it
to be executed according to the time and place specified. Third, both
contracts fulfill the characteristics of bayʿ al-ṣifāt (sale by description)
and not bayʿ al-ʾaʿyān (the sale of objects in rem). Lastly, in both con-
tracts both contrevalues are deferred although the price could be paid
by installments as well.69
Given the close similarities between the two contracts and the fact
that the conventional forward contract is immune from ribā and gha-
rar, which are the most commonly advanced arguments to invalidate
it, we could say the forward contract is a valid contract in Islamic law.
The forward contract is immune from gharar in the sense that the pos-
sibility of the seller not being able to make delivery (due to difficulties
in getting the subject matter of the contract) is very remote and could
not be compared to cases of “birds in the sky” or “fish in the deep sea,”
which represent the standard concept of gharar. Similarly, there is no
risk regarding the subject matter of the contract since it is well defined
and not similar to cases such as “I am selling to you what is in my
hand” or “what is in my box” without showing it.70
66
al-Zurqānī, Sharḥ al-Zurqānī ʿalā Muqtaṣar Khalīl, Beirut, Dār al-Fikr, Beirut, 1978,
vol. 5, p. 38; Ibn Qudāmah, al-Mughnī, Dār al-Fikr, Beirut, vol. 4, p. 56.
67
Al-Dirdīr, al-Sharḥ al-Kabīr ʿalā Khalīl, Beirut, Dār al-Fikr, Beirut, vol. 3, p. 27.
68
al-Buhūtī, Kashshāf al-Qināʿ, vol. 3, p. 164.
69
See ʿAbd al- Wahhāb Abū Sulaimān, “ ʿAqd al-Tawrīd Dirāsah Fiqhiyyah
Taḥlīliyyah,” paper presented to the twelfth session of the Islamic Fiqh Academy, Rabat,
Morocco, pp. 2–3.
70
Ibid., pp. 44–47.
the forward commodities market 67
Aḥmad ʿAli ʿAbd Allāh has also argued in favor of the permissibil-
ity of the forward contract by analogy to bayʿ al-ṣifah. He maintained
that salam is accepted according to the norms of shariah and it is not
against giyas as it is claimed by many scholars. Therefore, we can make
an analogy by considering the salam a kind of bayʿ al-ṣifah in order to
accommodate the conventional forward contract. He also refuted the
claim that it is part of the prohibited sale of debt for debt or the sale
of what is not with you.71
71
Aḥmad ʿAli ʿAbd Allāh, “al-Bayʿ ʿalā al-Ṣifah,” pp. 3–15.
72
Abū Da’ūd, Sunan, ḥ adīth No. 2187.
73
Ibn al-Qayyim, Iʾlām al-Muwaqqīʾn ʿan Rabbi al-ʾĀlamin, Dār al-Kutub al-‘Ilmiyyah,
Beirut, Lebnan, 1991, vol. 1, pp. 383–4.
74
Ibid., vol. 1, p. 399.
68 chapter two
1. “Do not sell what is not with you” means not to sell what one does
not own (la tabi‘ma laisa ‘indaka) at the time of sale. One of the basic
requirements of sale, as al-Kāsānī stated, is that the seller owns the
object of sale when selling it, failing which the sale is not concluded,
even if the seller acquires ownership later. The only exception is the
salam sale, where ownership is not a prerequisite. According to this
interpretation, al-Sanʿānī stated that this phrase implies that it is not
permitted to sell something before owning it. Ibn al-Humām and
Ibn Qudāmah similarly concluded that a sale involving something
that the seller does not own is not permitted even if he/she buys and
delivers it later.76
2. Some other jurists and ḥ adīth scholars hold that this ḥ adīth applies
only to the sale of specified objects (al-ʾaʿyān) and not to fungible
goods, as these can be substituted or replaced with ease. Al-Baghawi77
and al-Khattābi,78 in contrast, are among the scholars who stated
that this prohibition is confined to the sale of objects in rem (buyuʿ
al-ʿaʾyān) and does not apply to the sale of goods by description
(buyūʿ al-ṣifāt). Hence, when salam is concluded for fungible goods
that are readily available in the locality, it is valid even if the seller
75
Ibn Qayyim, I’lām al-Muwaqqi‘īn, vol. 1, p. 219.
76
Muhammad Ibn Ismā ‘il al-Sanʾānī, Subul al-Salām Sharḥ Bulūgh al-Marām, al-
Maktabah al-Tijāriyyah, Cairo, n.d., vol. 3, p. 17.
77
al-Baghawī, Abū Muhammad al-Ḥ usayn, Sharḥ al-Sunnah, al-Maktab al-Islāmī,
Damscus, n.d., vol. 8, pp. 140–141.
78
Al-Khaṭtạ̄ bi, Maʿālim al-Sunan, Cairo, Matbʿat al-Sunnah, n.d., vol. 5, p. 143.
the forward commodities market 69
does not own the object at the time of contract. Al-Khattābī has said
that this ḥ adīth refers to the sale of specific objects for the Prophet
permitted deferred sales of various kinds, in which the seller did
not have the object of sale at the time of contract. In essence, this
prohibition seeks to prevent gharar in sales (e.g., a runaway camel,
uncertainty over delivery, and sale of someone’s property without
his or her permission).
3. A third position is that a sale of “what is not with you” means the
sale of what is not present and what the seller cannot deliver. This
is the view of Ibn Taymiyah, who stated that the emphasis is on the
seller’s inability to deliver, which entails risk-taking and uncertainty
(mukhāṭarah wa gharar). If the ḥ adīth were taken at face value, it
would proscribe salam and a variety of other sales. However, this is
obviously not intended. The Prophet forbade Ḥ akim Ibn Ḥ izām to
sell the particular objects either because he might not own them or
because he might not be able to deliver them. The latter reason is
more likely to be the basis for the prohibition, otherwise the cause
or ʿillah is available even in salam. Some Mālikis held similar views.
It is quite possible that the seller owns the object but is unable to
deliver it, or that the seller possesses the object but does not own it.
In either case, the sale would fall within the purview of this ḥ adīth.
Therefore, the ḥ adīth underlines neither ownership nor possession,
but rather the seller’s effective control and ability to deliver. There-
fore, the only effective cause of the prohibition (ʿillah) is gharar on
account of one’s inability to deliver.79
79
al-Baghawī, Abū Muhammad al-Ḥ usayn, Sharḥ al-Sunnah., vol. 8, pp. 140–141.
80
ʿAlī Abd al-Qŭdir, “Taʿqīb ʿalā Raiʾ al-Tashrīʿ al-Islāmī fi Masāʾil al-Burṣah,” p. 439.
81
Muhammad Yousuf Musa, al-Buyūʿ wa al-ʿAmaliyyāt al-Māliyyah al-Muʿāṣirah,
Cairo, Dār al-Kitāb al-ʿArabī, 1954, p. 193.
82
al-Qaraḍāwī Youssuf, Bayʿ al-Murābaḥ ah li al-ʿĀmir bi al-Shirāʾ Kamā Tujrīh
al-Maṣārif al-Islāmiyyah Dirāsah fi Dawʿ al-Nuṣūṣ wa al-Qawā‘id al-Sharʿiyyah, Cairo,
Maktabat Wahbah, 1987, p. 19.
70 chapter two
83
For further details, see Kamālī, “Islamic Commercial Law, An Analysis of Futures,”
The American Journal of Islamic Social Sciences, vol. 13, Summer 1996, no. 2, pp. 205–7.
84
See Taqi al-Usmāni, “ ‘Uqūd al-Tawrīd wa al-Munāqaṣāt,” paper presented at the
twelfth session of the Islamic Fiqh Academy, pp. 3–11.
the forward commodities market 71
85
Edward J. Swan, McKenna & Co., “Derivatives and the Control of Oil,” Edward J.
Swan, (ed.) Derivatives Instrument Law, Cavendish Publishing Limited, p. 52.
CHAPTER THREE
There are two basic types of economic trading system: barter economies
and monetary economies. Each system, in turn, can take different forms.
Barter is the direct exchange of goods and services for other goods and
services. There must be a double coincidence of wants. However, a pure
barter economy has several shortcomings, such as absence of a method
of storing generalized purchasing power, absence of a common unit
of measure and value, and the absence of a designated unit to use in
writing contracts requiring futures payment.1
1
See Roger LeRoy Miller and David D. VanHoose, AC, Modern Money and Banking,
McGraw-Hill, USA., Third International Edition, 1993, pp. 10–12.
trading gold on a forward basis 73
On the other hand, money has existed in diverse forms. Most types of
money that were used are commodities monies. They are physical com-
modities monies. Early commodities monies, such as wool, boats, sheep,
and corn had equivalent monetary values and nonmonetary values.
More advanced societies that were able to mine and process scare metals
like gold and silver found that these metals possessed in abundance the
key properties of satisfactory money. Gold and silver are recognizable
and are durable metals. While heavy, they nonetheless are portable. It
is possible to measure their purities as metals, so that individuals can
standardize them by both weight and degree of purity. Heating and
chemical and physical processes can make gold and silver completely
divisible. For this reason, gold and silver have been predominant types
of commodity monies.2 The following is a list3 of some of the different
types of money that have existed throughout history.
On the other hand, the monetary system that prevailed during the
Prophet (PBUH) days was essentially a bimetallic standard with gold
and silver coins circulating simultaneously. The ratio that prevailed
between the two coins at that time was 1:10. Such stability did not,
however, persist. The two metals faced different supply and demand
conditions which tended to destabilize their relative prices. Thus, during
the Umayyad period it reached 1:12, while in the Abbasid period after
2
Ibid.
3
Ibid., p. 12.
74 chapter three
that, it reached 1:15. The decline of silver continued until it reached 1:35
and 1:50 at certain times. When the United States adopted bimetallism
in 1792, the gold/silver price ratio was 1:15. However, the fluctuating
price of both metals led the United States to demonetize silver in 1873.
The experience of several other countries suggests that bimetallism was
a fragile standard. This was the cause of its universal demise.4
Silver continued to loose ground and the gold standard become preva-
lent around the world and emerged as the true international standard
by 1880. Monometallism hence took its place. Under this standard,
the value of a country’s currency was legally defined as fixed weight
of gold and the monetary authority is under an obligation to convert
the domestic currency demand into gold at the legally prescribed rate.
Historically, there have been three variants of the gold standard: the
gold coin standard, when gold coins were in active circulation; the
gold bullion standard, when gold coins were not in active circulation
but the monetary authority undertook to sell gold bullion against the
local currency at the official rate; and the gold exchange standard (or
the Bretton Woods system) when the monetary authority was required
to exchange domestic currency for US dollars which could be converted
into gold at a fixed parity. The rules of the gold standard required deficit
countries to deflate and the surplus countries to reflate their economies.
This seemed unrealistic during the Great Depression when the deficit
countries had no alternative but to reflate the economies to reduce
unemployment.5
The financial needs of the Second World War and post-War recon-
struction made the return to the gold standard even more difficult and
the Bretton Woods system become universally adopted after the Second
World War. US dollars became the cornerstone of this system because
at the end of the Second World War the United States had around two-
thirds of the world’s monetary gold. By the late 1950s, the growth of
the world monetary gold stock was insufficient to finance the growth
of world output and trade. The dollars supplied by the United States
deficit helped provide the needed liquidity. However, the persistent US
deficits led to a continuous decline in its gold holdings and undermined
its ability to maintain the dollar’s convertibility into gold. Ultimately the
4
Umer Chapra, “Monetary Management in an Islamic Economy,” Islamic Economics
Studies, Islamic Development Bank, vol. 4, no. 1, 1996, pp. 1–2.
5
Ibid., pp. 2–3.
trading gold on a forward basis 75
1. Buying gold and keeping it for sale when the prices are better.
2. Exchanging a mutual promise for the purchase or sale with mutual
delivery taking place at an agreed upon date in the future. In other
words, the parties agree upon the purchase or sale of a specific
amount of gold of a specific quality to be delivered at a future date.
The mutual promise is executed at maturity.
6
Ibid., p. 3.
76 chapter three
7
See Bayt al-Tamwīl al-Kuwaitī, al-Fatāwā al-Sharʿiyyah fi al-Masāʿil al-Iqtiṣādiyyah,
Kuwait, 1988, pp. 546–553.
trading gold on a forward basis 77
8
al-Kasānī, Badā‘i al-Ṣanā‘i, Dār al-Kitāb al-ʿArabī, Beirut, 2th edition, 1983, pp.
185–190.
9
Bayt al-Tamwīl al-Kuwaitī, al-Fatāwā al-Sharʿiyyah fi al-Masāʿil al-Iqtiṣādiyyah,
Kuwait, 1988, pp. 546–553.
78 chapter three
10
Baqir al-Ṣadr, al-Bank al-LaRiawi, p. 173.
11
Bayt al-Tamwīl al-Kuwaitī, al-Fatāwā al-Sharʿiyyah fi al-Masāʿil al-Iqtiṣādiyyah,
pp. 546–553.
12
See Abū Dāʾūd, Sunan Abī Dawūd with ʿAwn al-Maʿbūt, vol. 9, p. 198.
13
Mālik Ibn ʾAnas, al-Muwattaʾ, vol. 2, p. 632.
14
Al-Bukhārī, Saḥ īḥ al-Bukhārī, vol. 4, p. 379.
15
al-Shawkānī, Nayl al-Awṭār, Muʾassasat Dār al-Turāth, Cairo, n.d., vol. 5, p. 191.
trading gold on a forward basis 79
and silver and has the same rules regarding zakah or exchange for one
another. Thank Allah that the sharīʿah adviser of the Kuwaiti Finance
house had an opinion similar to that of the Board of Great Scholars in
Saudi Arabia. It is reported in resolution no. 10, dated 16/4/ 1393.A.H.
of that Board, “After examining the different opinions of experts of
economics on the subject, the following fatwā was issued: “Considering
the fact that money is everything considered by custom as a medium
of exchange, as it is said by Ibn Taymiyyah, then there is no natural
or legal specification of what should be the medium of exchange. The
acceptance of any medium of exchange depends on custom and usage.
Thus, the dirhams and the dinārs are not desired for their own sake
but because of their ability to serve as a medium of exchange.16 Imām
Mālik is also reported to have said in the Mudawwanah: “If people
used camel skin as a medium of exchange I would see it as unlawful
to exchange it with gold on a deferred basis.”17 Therefore, since paper
money is generally accepted as a medium of exchange and source of
value, and since it is not a certificate which could be refunded by gold,
and given the fact that it is not necessary to be wholly backed by gold
later, the strength or weakness of any currency depends on the economy
of the country of its origin. Therefore, it should be considered in the
same way as gold.
The opinion of Imam Mālik18 and Imām Aḥmad Ibn Ḥ anbal19 that
the ʿillah in gold and silver is muṭlaq al-thamaniyyah (broader concept
of money) seems to be in line with the objective of sahrīʿah, and since
this ʿillah is present in paper money, the Board of Great scholars decided
by a majority that paper money is a thaman and it differs according
to the country of issuance. Therefore, ribā is applicable to these cur-
rencies as it is to gold and silver or others like fulūs (cheap metal or
copper money). It is not permissible to sell them on a deferred basis
or to exchange one kind of it with another with an addition, such as
selling ten Saudi riyāl (paper) for eleven (coin). However, it is permis-
sible to exchange these different currencies if it is hand to hand. Zakah
is obligatory on paper money and it can be made the price for salam
and partnership contracts.
16
Ibn Taymiyyah, Majmūʿ al-Fatāwā, vol. 19, pp. 250–252.
17
Malik Ibn Anas, al-Mudawwanah al-Kubra, vol. 3, p. 90.
18
al-ʿAdawī, Hāshiyat al-ʿAdawī, Dār al-Fikr, edited by Yousouf al-Sheikh, Dār al-
Fikr, Beirut, 1982, vol. 2, p. 45.
19
Ibn Qudāmah, al-Muqnī, vol. 4, p. 5; Ibn Taymiyyah, al-Fatāwā, vol. 29, p. 137.
80 chapter three
Based on the above, the sharīʿah advisor of the Kuwait Finance House
argued, “We are of the opinion that trading gold and silver, whether
bullion or otherwise and whether it is exchanged with paper money,
gold or silver must take place at the place of the contract, determined
according to the custom of the day. Therefore, receiving a cheque could
be considered taking of possession at the time of contract and it is
similar to paper money in circulation and taking possession.
Commenting on the opinion of some commentators on the issue,
the sharīʿah adviser pointed out that some have noted a difference
between the imposition of zakah and the possibility of ribā in paper
money if it is transacted on a deferred basis. They considered paper
money as something that should subjected to zakah but not ribawī.
This is an odd differentiation since paper money should be considered
as gold and, therefore, it should be subjected to zakah and the rules of
taking possession. Otherwise, it should be considered as a commodity
and by consequence not subjected to zakah unless it is used for trade.
This last possibility is unacceptable due to its impacts on zakah and
ribā. It is commonly accepted that people do not keep paper money
for trade but as a medium of exchange for their needed commodities.
They do not consider it as a commodity. Therefore, to consider it as
such would mean it is legitimate to exchange ten dīnārs for eleven and
this is direct ribā.
Pursuing his analysis the sharīʿah advisor said, “Concerning the
status of other metals, the jurists have different opinions as to whether
an analogy with gold could be accurate. The Zāhiri school,20 Osmān
al-Butti, Ibn ʿAqīl from the Ḥ anbali school,21 Qatāda and Tawūs from
the Tabi‘ūn regarded the ʿillah or the rationale to be limited to the
items mentioned in the ḥ adīth. However, we do not need to elaborate
on the different opinions regarding the ʿillah since Muslim jurists are
unanimous that if these metals are exchanged with paper money, there
is no ribā whether nasīa’h (loan) or faḍl (trade). Therefore, it is possible
to sell it at the spot or on a deferred basis if one of the countervalues
is present. Otherwise, it will be bayʿ al-kāliʾ bi al-kāliʾ.”22
20
Ibn Ḥ azm, ʿAlī Ibn Aḥmad, al-Muhallā bi al-ʾĀthār, Dār al-Ma ʿārif al-Jadīdah,
Beirut, vol. 8, 1988, pp. 471–478.
21
Al-Mirdāwī, al-Inṣāf, Dār Iḥyāʾ al-Turāth, Beirut, vol. 5, pp. 131–135.
22
Bayt al-Tamwīl al-Kuwaitī, al-Fatāwā al-Sharʿiyyah fi al-Masāʿil al-Iqtiṣādiyyah,
pp. 553–559.
trading gold on a forward basis 81
It is clear that even this answer is not convincing with regard to the
issue of gold trading. First of all, the answer is entirely based on the
fatwā of the Board of Leading Scholars in Saudi Arabia, which was
about the issue of considering paper money as a medium of exchange
and source of value like gold. If this is so, then paper money should
fall under the same ruling as gold concerning ribā and zakah and it is
not at all about gold trading. Still, some similarities do exist between
the two issues, but they are not the same. Therefore, a correct conclu-
sion based on the analysis of one of them would not be correct for the
other. Secondly, the sharīʿah advisor raised the issue of ʿillah, but not in
connection to gold, the topic under discussion, but about other metals.
A thorough investigation of the ʿillah of gold may lead to another con-
clusion. Moreover, he mentioned only the opinion of the literalists or
the zāhirī school, who considered the ʿillah to be limited to the items
mentioned in the ḥ adīth. Therefore, paper money could not be consid-
ered as ribawī, which in turn contradicts his conclusion about paper
money based on the view that the ʿillah in gold and silver is mutlaq
al-thamaniyyah (broader concept of money).
The issue was discussed again at the Kuwait Finance House between
Mohammad Abū al-Saud, Aḥmad Bazīʿ al-Yāsin, the president of the
House, and Sheikh Badr al-Mutwallī ʿAbd al-Bāsit. Mohammad Abū
al-Saud maintained that today gold is considered a commodity like any
other commodity and that paper money is considered as legal tender not
because they are backed by gold or silver but because of the authority
of the law. Second, paper money represents the total output of goods
and services produced by the country, and last, people needed it as a
medium of exchange. Therefore, exchanging gold with any kind of these
paper currencies is like any ordinary sale that could be deferred.
Sheikh Badr al-Mutwallī ʿAbd al-Bāsit replied that based on his
personal knowledge, it is necessary that any kind of paper money be
backed by a certain quantity of gold in most countries around the
world. Therefore, the rules regulating ṣarf should be maintained in
its exchange and the taking of possession should be at the time of the
conclusion of the contract.
Aḥmad Bazīʿ al-Yāsin supported Sheikh Badr’s view that paper money
must follow the rule for gold and silver with regard to the issue of
taking possession in exchange and zakat. Otherwise, he argued, this
would open the doors for ribā. Finally, Sheikh Badr pointed out that a
final decision on the subject should be discussed at the level of “lead-
ing scholars” given the complexity of the subject and the diversity of
82 chapter three
23
Ibid., pp. 559–560.
24
Fisal Islamic Bank of Sudan, Fatāwā Haiʾat al-Raqābah al-Sharʾiyyah Li-bank Faisal
al-Islāmī al-Sudānī, pp. 95–97.
trading gold on a forward basis 83
25
Ibid., p. 98.
26
al-Ruhaibānī, Matālib ulī al-Nuhā fi Sharḥ Ghāyat al-Muntahā, vol. 3, p. 181.
27
Ibn Ḥ azm, al-Muḥ allā bi al-Āthār, vol. 5, p. 351.
84 chapter three
Despite the fact that almost all Muslim schools except the Zahirī school
used analogy to widen the scope of ribā in gold and silver, they often
dissented when it came to the practical interpretation of the ḥ adīth.
Thus, the Zahirī school, as a result of their rejection of analogy (qiyās)
as a way of determining the law, assumed that the prohibition of ribā
applies only to the six articles quoted in the ḥ adīth (gold, silver, wheat,
barley, dates and salt). Therefore, it cannot be extended by way of analogy
to other articles.28 A direct consequence of this opinion was that paper
money would not be considered as having the characteristic of gold and
silver as mentioned in the ḥ adīth. Therefore, it is legal to exchange them
with paper money on a deferred basis. It seems that the International
Association of Islamic banks has adopted a similar interpretation in its
opinion as quoted above. We have already mentioned its shortcomings
and their grave consequences on ribā and zakah.29
For the Ḥ anafīs the ʿillah is that they are weighed articles when they
are exchanged.30 This opinion has also been attributed to Imām Aḥmad
Ibn Ḥ anbal as one version of his opinion.31 On the other hand, for the
Mālikīs, Shaf ʿīis and a second version of Imam Aḥmad’s opinion, the
ʿillah in gold and silver is that they are currency (athmān). However,
some of them considered the ʿillah here as totally restricted to gold and
silver and could not be extended to any other thing (ʿillah qāsirah).
The last opinion was reported from some Mālikīs32 and Ḥ anbalīs33 who
maintained that the ʿillah in gold and silver is that they are currency
(athmān). A similar analysis was also reported from Mohammad Ibn
al-Ḥ assan al-Shaibānī in his discussion of the possibility of ribā in fulūs.34
28
Ibid., vol. 5, p. 355.
29
See also ʿAli al-Sālūs, Al-Nuqūd wa Istibdāl al-ʿUmlāt, Maktabat al-Falaḥ, Kuwait,
1985. ʿAli al-Sālūs elaborated on this in his argument and counterargument with Ḥ assan
Ayyoub. While Sālūs maintains that the ʿillah is mutalq al-thamaniyyah, Ḥ asan Ayyoub
is of the opinion that the ʿillah is restricted to the six items mentioned in the ḥ adīth;
therefore, there is no ribā in the exchange of papers currencies on a deferred basis
because they are commodities.
30
Al-Sarakhsī, al-Mabṣūṭ, vol. 12, pp. 167–8.
31
Ibn Qudāmā, al-Mughnī, vol. 4, p. 125.
32
Imām Mālik, Al-Mudawwanah, vol. 3, pp. 395–396.
33
Ibn Qudāmah, al-Mugnī maʾal-Sharḥ al-Kabīr, vol. 4, p. 126. Ibn Taymiyyah,
Majmūʾ al-Fatāwā, vol. 29, pp. 251–252.
34
See al-Sharakhsī, al-Mabṣūt, vol. 194.
trading gold on a forward basis 85
Moreover, this ʿillah could be extended to any other object, which has
become a medium of exchange (mutlaq al-thamaniyyah).35
However, to consider the rationale (or unique feature) prohibiting
ribā in gold and silver to be the weight is somehow inconsistent. For
instance, it is agreed among all scholars that it is permissible to make a
salam contract in exchange for other weighable items. Therefore, if we
consider gold and silver as weighable items, we would be exchanging
weighable with each other on a deferred basis, which would undermine
the very objective of the ʿillah itself. Moreover, if we look to the wisdom
behind the prohibition of ribā, it could be said that it is more appar-
ent, nowadays, in paper money than it is in gold, although it is not a
weighable item.36 However, some Ḥ anbalīs who adopted this view argue
that other weighable items are accepted in salam without ribā by way
of necessity. The weakness of this argument is clear.37 The Ḥ anafīs for
their part, argued that gold is weighed on scales while other weighable
items are measured by the steelyard.38 This argument is even weaker
than the first one.
On the other hand, there is greater consistency in the argument of
those who consider thamaniyyah as the ratio or important feature in
gold and silver. However, they too have differed among themselves as
we have mentioned before. Some considered it qhalabat al-thamaniyyah
which means the thamaniyyah in gold and silver occurs by nature or
creation (bi al-khilqah). In other words, these two commodities are by
creation the only medium of exchange and should remain so. Moreover,
no other item could be given these characteristics.39 A direct implication
of this opinion is that they have classified money into natural money
(naqd bi al-khilqah) and conventional money (naqd Iṣtilāḥ ī). The former
represents bullion money because, as they argued, gold and silver were
created by Allah to act as the price. The latter, namely, conventional
money, represents all forms of money whether made of inferior metal
35
See al Shawkānī, Nayl al-Awtār Sharḥ Muntaqā al-Akhbār Min A ḥ adīth Sayyid
al-Akhyār, Cairo, al-Bābī al-Ḥ alabī, vol. 5, p. 220.
36
For more detail, see ʿAbd Allāh Ibn Manī, “al-Waraq al-Naqdī Ḥ aqiqatan wa
Ḥ ukman,” Buḥ ūth fi al-Iqtiṣad al-Islāmi, Saudi Arabia, Idārat al-Thaqāfa wa al-Nashr,
Jāmiʿat al-Imām Mohammad Ibn Saʿūd al-Islāmiyyah, 1989, pp. 59–107.
37
See Ibn Qudāmah, al-Muqhnī, vol. 4, p. 4.
38
See al-Kasānī, Badāii al-Sanāi, vol. 5, p. 186.
39
Al-Bājī, al-Muntaqā Sharḥ Muwatāʾ al-Imām Mālik, vol. 4, p. 258; al-Ghazālī, Ihyāʾ
ʿUlūm al-Dīn, vol. 4; p. 96; al-Nawawī, al-Majmūʿ Sharḥ al-Muhazzab, vol. 9, p. 443.
86 chapter three
40
Nazīh Ḥ ammād, “Taqhawwur al Nuqūd wa Atharuhu ʿalā al-Duwūn fi al-Fiqh
al-Islāmī,” Majalat al-Baḥ th al-ʿIlmī, Jeddah, vol. 3, 1980; Hasnuz Zaman, Indexation of
Financial Assets: An Islamic Evaluation, The International Institute of Islamic Thought,
Islamabad, 1993, p. 49.
41
See Ibn Rushd, Bidāyat al-Mujtahid wa Nihāyat al-Muqtaṣid, vol. 2, p. 97; Ibn
Qayyim al-Jawziyyah, ʿIlām al Muwaqqiʾn an Rab al-Ālamin, vol. 2, p. 156; Ibn Taymiyyah,
Majmūʿ al-Fatāwā, vol. 29, p. 472.
42
Saʿdī Abū Jayb, Bayʿ al-Ḥ ulii fi al-Sharīʿah, Dār al-Fikr al-Muʿāsir, Beirut, 1994,
pp. 3–18.
trading gold on a forward basis 87
The question here is that if paper money is the sole medium of exchange
recognized by people around the globe, and if the consistent ʿillah behind
the trade of gold and silver on a deferred basis no longer exists nowa-
days, and considering the fact that one of the well-recognized Islamic
jurisprudential principles is that the existence of any rule is subject to
the existence of its cause or ʿillah (al-ḥ ukmu yadūru maʿ illatihi wujūdan
wa ʿadaman), what would be the position of gold and silver? Moreover,
if we consider the argument advanced by Ibn Taymiyyah and his disciple
Ibn Qayyim with regard to the permissibility of exchanging jewelery
on a deferred basis since it is no longer a medium of exchange, and
the opinion that fulūs are ribawī items because they are athmān, one
could say that the logic and legal arguments advanced in favor of the
permissibility of selling gold and silver today on a deferred basis
require strong argument and evidences in order to be overruled. We
have already explained the weaknesses of the different kinds of ʿillah
advanced by the different schools and their result of opening the doors
to ribā, except for the opinion that the ʿillah is mutlaq al-thamaniyyah.
We could say that the prohibition against selling gold and silver on a
deferred basis is not because they are gold or silver but because they are
athmān, or the medium of exchange and whatever the custom considers
it must be, so that it should be treated as thaman. On the other hand,
the reality is that neither gold nor silver is thaman nowadays, and the
Islamic principles are clear with regard to a specific rule if its ʿillah is
no longer in existence.
Despite this reality and the legal argument advanced, the views of some
commentators raise concern. Saleh al-Marzūqī argued, for instance:
The use of paper money is well established in the Muslim world and has
become the only medium of exchange or almost so, because it possesses
the ʿillah behind the prohibition to transact gold and silver on deferred
bases, which is thammaniyyah as recognized by the Fiqh Academies and
the Council of Great Scholars in Saudi Arabia and accepted by most
88 chapter three
contemporary Muslim jurists. Despite the fact that the use of gold as
a medium of exchange has totally disappeared except in limited cir-
cumstances, some countries have even prohibited its use as a medium
of exchange and the fact that bullion gold is traded as commodity, the
thamaniyyah in the old golden dīnār will remain and must remain so until
the day of judgment. In addition, the appearance of paper money nowa-
days, or another medium of exchange in the future, will not change the
thamaniyyah in gold whether it is in the form of dinār, bullion, jewelery
or raw gold because the sunnah makes it an obligation that it should not
be traded unless of equal measurement and exchanged hand to hand. It
is the basis (ʿasl ) on which other items will be considered by analogy.”43
It is clear from this argument that al-Marzūqī was of the opinion that
gold and silver are athmān by creation or by nature, which means gold
and silver will remain athmān even if they lose their characteristic of
being the medium of exchange or athmān in real life. They must remain
as athmān because they are so by nature. However, despite the fact that
some classical scholars have argued that gold and silver are athmān by
nature and that this opinion has been endorsed by some contempo-
rary writers, we have not come across the legal basis for this opinion
in the Qurʾān or the sunnah. Therefore, to our knowledge, there is no
such basis except ijtihād (endeavour of a jurist to derive a rule). And
if it is merely an ijtihād we are not under any obligation to follow it,
especially when it contradicts another kind of ijtihād that seems to be
more rational and consistent. It should be noted that Salamah Jabar,
one of the advocates of the view that gold and silver are currencies by
creation, quoted a ḥ adīth44 to justify his claim. The ḥ adīth is reported in
al-Tabarānī to the effect that “gold and silver are the stamp of God on
earth and whoever brings this stamp will get his need fulfilled.”45 How-
ever, this is a weak ḥ adīth46 and could not be accepted as an argument
on the issue. Moreover, even the meaning seems to have no connection
with the claim that gold is money by creation. It is well recognized that
aḥ kām or Islamic rules in the area of muʿamalāt (commercial transac-
43
Saleh al-Marzūqī “Tijārat al-Zahab fi Aham Ṣuwarihā wa Aḥkamihā,” Majallat
Majmaʾ al-Fiqh al-Islāmī, ninth session, no. 9, vol. 1, 1996, pp. 152–153.
44
Moḥammad Salāmah Jabar, ʾAḥ kām al-Nuqūd fi al-Sharīʿah al-Islāmiyyah, Maktabat
al-Ṣaḥwah al-Islāmiyyah, Kuwait, 1995, p. 111.
45
Al-danānir wa al-darāhim khawātīm Allāh fi ʿardihi faman jāaʾ bi khatami mawlāh
quḍiyat hājatuhtu.
46
See al-Manāwi, Mohammad ʿAbd al-Rauf, Fayd al-Qadīr Sharḥ al-Jāmiʾ al-Ṣaghīr
min Aḥ ādith al-Bashīr al-Nazir, Dār al-Kutub al-ʿIlmiyyah Beirut, Lebanon, 1994, vol. 3,
p. 726, ḥ adīth no. 4268. Al-Haithami said one of the reporters of this ḥ adīth is Aḥmad
Ibn Mohammad Ibn Mālik Ibn Anās. He is not a reliable person (daʾif ). Al-Zahabī
said this is a weak ḥ adīth. Ibid.
trading gold on a forward basis 89
47
Sāmī Ḥ assan Aḥmad Ḥ ammoud, “ ʿAmal al-Ṣarf wa Tabādul al-ʿUmulāt wa
ʾAḥkamuha fi al-Fiqh al-Islāmi”, ʾAbḥ āth al-Muʾtamar al-Thānī li al-Maṣrif al-Islāmī,
Kuwait, 1983, p. 111.
90 chapter three
48
al-Kāsānī, Badāi al-Ṣanāi fi Tartīb al-Sharāii, vol. 7, p. 3181.
49
Mohammad Ali El-Gārī, “Kasād al-Nuqūd al-Waraqiyyah wa ʿInqitāʾihā wa
Ghalāʾihā wa Rakhaṣihā wa ʿAtharu zālika fi Taʿyīn al-Ḥ uqūq,” Majallat Majmaʿ al-Fiqh
al-Islāmī, no. 9, vol. 2, pp. 694–697.
50
Ibid.
trading gold on a forward basis 91
1. Gold is still the origin of many currencies and they gained accep-
tance and circulation because of it, although this relation is no longer
obvious. However, gold still has its special position and nature that
differentiate it from other commodities. It is still more closely related
to currencies than to other consumable or industrial commodities.
For instance, people used gold as a medium of exchange 3000 years
ago and it remained so in one way or another until 1971 when the
United States ended the convertibility of the dollar to gold. Despite
this fact, gold remains the best measurement of value, albeit in an
indirect way, in contemporary transactions. Measurement of value in
particular is still based on the gold system as it is explained below:
• The price of one ounce of gold was thirty-five dollars when the
United States moved out of the gold system. Today, this price has
increased tenfold. It is now 350 dollars per ounce. However, what
attracts attention is that other financial indices have increased to
this level, namely, ten times. Thus, the public debt in the United
States has increased ten times, as well as the cost of the public
debt, or the rate of real interest etc. All this shows that gold is still
in reality the “currency by creation.”
• The strongest currencies in the world today are those that have
been able to have a stable relation with gold despite the absence
of an official relation between gold and these currencies. For
instance, Japan is always eager to maintain stable relations between
gold and the Yen. For that reason the price of gold has increased
three times vis-à-vis the Yen since 1971. Moreover, the Japanese
monetary policy is based on the maintenance of a stable relation
between the Yen and gold.
• Gold is still the best indicator of price movements in the
future . . . and the United States has been able to establish a stable
price movement after the adoption by the Federal Reserve System
of gold as the base of monetary policy.
2. Many experts, especially those associated with the Federal Reserve,
believe that a stable monetary policy cannot be realized unless the
major currencies around the world are related to gold in one way
or another. Even the Federal Reserve chairman has also backed this
opinion. All these facts show that gold is the “natural currency.”
3. Most banking legislation around the world prevents banks from
trading in commodities like wheat, oil, phosphate, aluminium etc.,
because banking activities are limited to currency trading. However,
this legislation includes gold in the category of currencies and allows
banks to invest in them.
92 chapter three
51
Ibid.
trading gold on a forward basis 93
Prophet (PBUH) because the custom was so at that time. Later on,
silver lost this characteristic and gold has become the sole medium of
exchange and store of value and now this too has been totally replaced
by paper money. Therefore, the determining factor in the issue is the
custom and whatever item is used by people as currency. There is thus
nothing special in the substance of dirham and dinār, as Ibn Taymiyyah
has explained.
Ibn Manī’, a contemporary jurist who has written widely on the
subject of currencies and gold and is a member of the different Islamic
Fiqh Academies, said in his rebutal of the claim that gold and silver are
money by creation:
We have doubt about the reliability of the opinion that gold and silver are
money by creation. This doubt will be more apparent when we survey the
history of money, which reveals that people had different kinds of money
before gold. The concept of money is a subjective concept. It could vary
according to government policies and according to custom and practice.
Therefore, the opinion that gold and silver are money by creation is just
an opinion, which has no grounds either from legal, or linguistic or his-
torical perspectives. However, this does not deny the fact that it has more
characteristic of thamaniyyah than any other item.52
Given the above argument and counterargument and the confusion
whether gold has lost its characteristic of thamaniyyah or not and
despite the conviction that gold is not currency by creation, the pres-
ent study is somehow reluctant to give a final verdict on the issue due
to the practice of certain developed countries having policies totally
related to gold or the international practice of allowing banks to trade
in gold although, in principle, their area is limited to currencies. This
may shadow the stand that gold has totally lost its characteristic of
thamaniyyah. However, a temporary solution to the issue of trading
gold on a deferred basis will be the idea of non-binding mutual prom-
ise to exchange gold with paper money at the spot price followed by
a contract to confirm it at the time of delivery based on the argument
that gold is still money and thaman. The idea will be elaborated in the
next chapter because it is generally discussed as one of the alternative
for risk management of currency.
However, if the controversy about trading gold on a deferred basis
is still debated, what is the Islamic position on trading currencies on a
forward basis? This is what will be discussed next.
52
ʿAbd Allāh Ibn Manīʾ, “Al-Zahab fi Baʾḍi Khaṣāʾiṣihi wa Aḥkamihi,” Majallat
Majmaʿ al-Fiqh al-Islāmī, 1996, no. 9, vol. 1, p. 76.
CHAPTER FOUR
1
See Majmaʿ al-Fiqh al-Islāmī, Majallat Majmaʿ al-Fiqh al-Islāmī, no. 3, vol. 3,
p. 165. Resolution no. 21 (9/3).
the forward market for currencies 95
2
See Qarārāt Majlis al-Majmaʿ al-Fiqhī al-Islāmī, Makkah 8 to 16, Rabi al-Ākhir,
1402, Fifth Session, pp. 96–97.
96 chapter four
3
Peter S. Rose, Money and Capital Market—The Financial System in the Economy,
Business Publications, 1986, pp. 790–791.
4
John Prebbe (ed.), Dimensions in Banking and Foreign Exchange Law, Wellington,
Butterworths, 1992, p. 222.
the forward market for currencies 97
5
Ibn al-Munzir, al-Ijmāʿ, p. 97.
6
Sudin Haron and Bala Shanmugam, Islamic Banking System Concept and Applica-
tion, p. 139.
7
See ʾAbḥ āth al-Muʾtamar al-Thānī li al-Maṣrif al-Islāmī, Kuwait, 1983, p. 131.
8
Accounting and Auditing Organization for Islamic financial institutions, Sharīʿa
Standards 2004–5, Standard no. 1 Trading in Currencies, p. 5.
98 chapter four
9
Muslim, Saḥ iḥ Muslim with Sharḥ al-Nawawī, Mu’assasat Manāhil al-‘Irfān, Beirut,
1986, vol. 11, p. 37; see also Fatḥ al-BārīBi Sharh Saḥ īḥ al-Bukhāri, Dār Iḥyāʾ al-Turāth,
vol. 4, p. 304.
10
See, for instance, Ibn al-Humām, Fatḥ al-Qadīr, vol. 5, p. 327.
11
Muhammad Taqī al-‘Usmānī, “Aḥkām ʾAwrāq al-Nuqūd wa al-‘Umulāt” Majallat
Majmaʿ al-Fiqh al-Islāmī, no. 3, vol. 3, 1987, pp. 1704–1705; Mohammad Sulaimān al-
Ashqar “al-Nuqūd wa taqallub al Umalah,” Buhūth Fiqhiyyah fi Qadāyā Iqtisādiyyah,
Dar al-Nafāʾis Ammān, 1998, vol. 1, p. 289.
12
See for instance, Ibn al- Ḥ umām, Fatḥ al-Qadīr, vol. 6, pp. 168–170; Al-Khirshī,
Sharḥ Mukhtaṣar Khalīl, vol. 6, p. 205; al-Buhūti, Kashshāf al-Qināʾ, vol. 3, p. 498,
al-Mirdāwī, al-Inṣāf, vol. 5, p. 411.
the forward market for currencies 99
13
Mohammed Obaidullah, “Islamic Contracts for Currency Exchange: Divergent
Views and Implications,” Journal of Objectives Studies, Institute of Objectives Studies,
India, vol. 9, no. 2, July 1997/1416H, pp. 24–46.
100 chapter four
14
Mohammed Obaidullah, “Ethical Options In Islamic Finance” Journal of Objectives
Studies, Institute of Objectives Studies, India, vol. 10, no. 1, January 1998/ 1418–H,
p. 79.
the forward market for currencies 101
15
Mohammed Obaidullah, “Islamic Contracts for Currency Exchange: Divergent
Views and Implications,” p. 35.
102 chapter four
the presence of ribā al-faḍl (by excess), nor ribā al-nasīaʾh by deferment
can be established.16
As we have mentioned above, Obaidullah’s argument is based on
the Ḥ anafīʾ approach in deducing what is the ʿillah in gold and silver
and arguing that these modern currencies are neither weighable nor
measurable. However, we have already examined the weakness of this
approach in deducing the ʿillah and the difficulty faced by the Ḥ anafīs
themselves in defending it concerning the legality of salam in weigh-
able items such as metal. On the other hand, to discern the difference
between what is ribawī and what is not on the basis of the assumption
that the exchange rate risk is positive or it is zero may not be correct
all the time. Moreover, even the rate of exchange between gold and
silver fluctuated from time to time throughout the Muslim history,
but this did not prevent the application of the rules pertaining to ribā.
Although it is not so volatile as it is in the case of paper money, there
is still some fluctuation. Lastly, the claim that these currencies are only
legal tender within their geographical boundaries and, therefore, should
not be considered like gold and silver in the area of currency exchange,
may not be correct in all aspects. Indeed, the currency of country A
may not be accepted as a medium of exchange in country B, but it is
still recognized as a store of value and can be exchanged with the cur-
rency of the first country without any reluctance, as long as it is still
the legal tender in its country of origin. For instance, the Saudi riyal
may not be accepted as a medium of exchange within Malaysia, but it
is recognized as a store of value and not just ordinary paper and can
be exchanged with the Malaysian ringgit at any time and any place. It
is similar to the case when one country is using gold as the medium
of exchange while the other is using silver. Both are regarded as stores
of value and the mediums of exchange in their respective countries,
and one medium of exchange may not be accepted as legal tender in
the other country, but they could not be exchanged unless it is hand-
to-hand. From the above, we could say that to exchange different cur-
rencies on the salam basis is illegal and there is no difference between
the deferment of one of the countervalues or both of them due to the
clear ḥ adīth stated before.
16
Ibid., pp. 28–29.
the forward market for currencies 103
17
It is worth mentioning that some scholars have totally excluded any benefit for
forward currency trading. Thus Sāmi Hamoud held that “It is well known fact that in
practice dealing in exchange on the basis of the forward rate represents neither the need
of commerce nor the ordinary commercial activity, but is more or less a speculation in
the rate of currencies and of interest in the main international centers. For this reason
the local banks of many countries neither involve themselves nor deal in this risky
kind of exchange, which is rather an act of gambling.” This statement may have a kind
of objectivity with regard to those entering the forward currency market as specula-
tors, but it would be totally unfounded in the case of genuine traders trying to hedge
themselves against any currency fluctuation in the future. Moreover, the reasons for
which he is defending the concept of mutual promise in foreign exchange trading are
the same reasons for forward currency trading as practiced in the conventional system
of finance. It may be somewhat acceptable to say the harm in such a transaction is
greater than the benefit if it is used for speculative purposes. Therefore, it should not be
allowed in Islamic law. It could also be argued that it is against the principle of currency
exchange in Islam according to the majority opinion. For instance, in principle a ṣarf
transaction should be hand to hand and therefore, it should be prohibited. However, to
pass a general judgment that there is no benefit in such a transaction is far from reality.
Moreover, some commentators followed this opinion without any effort to investigate
the issue or to analyze it. See, for instance, Abd Allāh Abū Umair, al-Tarshīd al-Sharī
lil Bunūk al-Islamiyyah, International Association of Islamic Banks, p. 280.
104 chapter four
18
See for instance Mohammad Qadri Bāshā, Murshid al-Ḥ airān, p. 63. Ulesh, Sharḥ,
Minaḥ al-Jalīlʿalā Mukhtaṣar khalīl, vol. 2, p. 510. Ibn Rusd, al-Muqaddimāt, Dār Sādir,
Beirut, vol. 2, pp. 507–9.
19
Ibn Juzai, al-Qawānīn al-Fiqhiyyah al-Sharʾiyyah, Beirut, Maktabat ʿĀlam al-Fikr,
1975, p. 263.
20
Al-Khirshī, Sharḥ Mukhtaṣar khalīl, vol. 5, p. 36.
the forward market for currencies 105
21
Aḥmad Muḥyī al-Dīn, ʿAmal Sharikāt al-Istithmār al-Islāmiyyah Fi al-ʾAswāq
al-ʾĀlamiyyah, pp. 340–344.
22
al-Shāf ʿī, al-ʾUmm, vol. 3, p. 32.
23
Ibn Ḥ azm, al-Muḥ allā, vol. 2, p. 513.
24
Al-Ḥ attāb, Mawāhib al-Jalīl lī-Sharḥ Mukhtaṣar khalīl, vol. 4, p. 513.
25
Ulesh, Sharḥ Minaḥ al-Jalīl ʿalā Mukhtaṣar khalīl, vol. 2, p. 510.
106 chapter four
26
Dallh Albaraka, Fatwa: Sharīʿah Ruling on Economics, Dallah Albaraka Research
and Development Department, Jeddah, Saudi Arabia, 1414/1994, pp. 71–72.
27
Bayt al-Tamwīl al-Kuwaitī, al-Fatāwā al-Sharʿiyyah fi al- Masāi’l al-Iqtiṣādiyyah,
Kuwait, 1986, vol. 1, p. 50.
the forward market for currencies 107
28
Jordan Islamic Bank, al-Fatāwā al-Sharʿiyyah, vol. 2, p. 11.
108 chapter four
The advocates of this opinion argued that there is nothing that could
prohibit such a transaction, since there is no ribā, gharar, or jahālah.
On the contrary, the transaction serves a real public interest.
Sāmi Ḥ amoud, one of the first advocates of this alternative, argued
that if we look into the facts of the case and take into consideration
the service which the importer receives from the transaction (in the
case of the mutual promise to buy) and the service which the exporter
receives (in case of the mutual promise to sell), we find that the reassur-
ance made to the importer in regard to the price which he will pay, and
to the exporter for the price he shall receive, is a matter which has its
importance. Where the bank has to perform extensive transactions it will
be able to balance the mutual promise of sale and purchase transaction
per se where no real dealings of imports and export are involved.29
Farḥān al-Abbār argued that the concept of mutual promise is out-
side the boundaries of the texts prohibiting the exchange of currencies
unless they are exchanged on the spot. The objective of these texts is to
prohibit the deferment of one of the countervalues while the second is
present. This difference of time is the cause of ribā. This is totally differ-
ent from the mutual promise where both countervalues are exchanged
later at the same time and on the spot. What is agreed upon through
the mutual promise is just the exchange rate30 and not the formation
of a contract of currency exchange.
ʿAbbās al-Bāz argued that the objection of those who reject the
mutual promise to sell foreign currencies will be correct if the parties
in the contract consider it a binding obligation, which may fall within
the ambit of bayʿ al-kāliʾ bi al-kāliʾ. However, what the advocates of this
opinion propagate is just a promise and a promise is not a contract.
Furthermore, to consider the fulfillment of the promise as obligatory
or wājib if the second party enters into another deal based on this
promise will not transform the promise into a contract. Therefore, any
request for damages if one party is affected by the default of the other
will be based on the failure to fulfill his promise and not the failure
to fulfill his contract. In practice, the different parties would strive to
fulfill their commitment not because they consider it a contract but
just to safeguard their reputations and to win the confidence of other
29
Sāmi Ḥ assan Ḥamoud, Islamic Banking: The Adaptation of Banking Practices to
Conform with Islamic Law, Arabian Information, London, 1985, p. 180.
30
Farḥān al-ʿAbbār, Qadā yā Muʿāṣirah fi al-Nuqūd, p. 322.
the forward market for currencies 109
Some have advanced the idea of mutual loans. It should be noted once
again that Muslim scholars are only concerned with the problem fac-
ing genuine traders and how they could manage their investment risks
without compromising sharīʿah rules. It is with this vision that the idea
31
See ʿAbbās Aḥmad al-Bāz, Aḥ kām Ṣarf al-Nuqūd wa al-ʿUumlāt fi al-fiqh al-Islāmī,
Ammān, Dār al-Nafāʾis, 1999, pp. 130–131.
32
Mohamed ʿAli El-Gārī, “al-Aswāq al-Māliyyah”, Majallat Majmaʾ al-Fiqh al-Islāmī,
p. 1626.
33
Rafīq al-Maṣrī, al-Jāmiʿ fi Aḥ kām al-Ribā, p. 148.
34
ʿAbd Allāh ʿAbd Al-Rahīm al-ʿAbādī, Mawqif al-Sharīʿah min al-Maṣārif al-Islāmiyyah,
pp. 318–319; Mustaphā ʿAbd Allāh al-Hamsharī, al-Maktab al-Islāmī, Beirut, 1986, pp.
378–9, and Jihād Abū ʿUmair, Al-Tarshīd al-Sharīʿ lil Bunūk al-Islāmiyyah, International
Association of Islamic Banks, p. 204.
110 chapter four
35
Jamāl al-Dīn ʿAṭiyyah, al-Bunūk al-Islāmiyyah Bainā al-Ḥ urrriyah wa al-Tanzīm;
al-Taqlīd wa al-Ijtihād; wa al-Nazariyyah wa al-Taṭbīq, kitāb al-Ummah, Qaṭar, Riʾāsat
al-Maḥākim al Sharʿiyyah wa al-Shʿūn al-Dīniyyah, Qaṭar, 1988, p. 163. Also see Abū al-Majd
Ḥarak, al-Bunūk al-Islāmiyyah ma lahā wa ma ʿAlayhā, Dār al-Ṣaḥwah, Cairo, n.d.,
p. 87.
the forward market for currencies 111
A final solution to this real problem is that the different parties involved
in the import-export trade may establish a cooperative fund in which
the different parties would deposit a certain amount. An Islamic bank,
36
Saud Mohammad al-Rubaiaʾ, Taḥwīl al-Maṣrif al-Ribawī ilā Maṣrif Islāmi Wa Muqta-
dayātuhu, Markaz al-Makhtūtāt wa al-Turāth wa al-Wathāʿiq, n.d., pp. 299–300.
37
Ibid., p. 298. Also see ʿAbbās Aḥmad al-Bāz, Aḥ kām Ṣarf al-Nuqūd wa al-Umlāt
fi al-fiqh al-Islāmī, ʿAmmān, Dār al-Nafāʾis, 1999, p. 131 and Jihād Abd Allāh Ḥ ussein,
al-Tarshīd al-Sharʿī lil Bunūk al-Islāmiyyah, Matbūʿāt al-Ittiḥād al-Dawlī lil Bunūk
al-Islāmiyyah, p. 204.
112 chapter four
for instance, could manage the fund on their behalf. The parties would
share the profits, if any, and at the same time they would be able to face
any risks associated with currency fluctuation.38
Thus, it seems that all these solutions have some advantages but also
some limitations. Nevertheless, one could say that the idea of mutual
promise may not be the perfect solution to the problem and it may
not be without criticism. However, it could be considered as a suitable
temporary solution to the problem until a perfect one is discovered.
Our choice of this method would not be complete, however, unless
we state the sharīʿah position regarding such a promise. Muslim schol-
ars agreed that if the promise is related to permissible matter, then, the
one who makes a promise should fulfill it. However, they disagree as
to whether such a fulfillment is obligatory or just recommended. For
the majority it is just recommended to keep a promise. Therefore, if
someone fails to keep his promise, he will just miss the reward he may
get in the Hereafter.39 However, Ibn Shubruma regarded the fulfillment
of a promise as compulsory and if the one who makes the promise fails
to do so, he will be forced by the court to fulfill his obligation. This
opinion has also been attributed to the companion Samura Ibn Jun-
dub, ʿUmar Ibn ʿAbdul Azīz, the fifth rightly guided caliph, al-Ḥ assan
al-Baṣrī, Isḥāq Ibn Rŭhawaih, Saʾīd Ibn Omar Ibn al-Aswa’, al-Bukhārī,
and Ibn Qayyim. After attributing this opinion to this large number of
scholars, al-Qaraḍāwī maintained that it is clear that to attribute this
opinion to just Ibn Shubruma and some Mālikīs, as it is alleged by some
commentators, is unfounded. On the other hand, refuting the claim that
what is reported about the obligation to fulfill a promise is just limited
to the promise related to charity and maʿrūf, al-Qaraḍāwī said:
This is an unacceptable distinction. The legal evidence in the issue is
general and there is no evidence to restrict it to one area or another.
However, if we have to make a distinction between what is charitable
and the one involving financial transactions, it seems that the opposite of
what is claimed is right: it is logical to consider such a promise binding
in the area of financial transactions rather than that of a charity. This is
so because the financial harm which will be inflicted on the one entering
the deal as a commercial partner, who relies on this promise, will be much
greater than that with the one who is depending on charity. Therefore,
38
Qhassān Burhān al-Dinqalʾaji, Taqwīm Adāʾ al-Nashāt al-Maṣrifī al-Islāmī, p. 107.
39
See, for instance, al-Nawawī, al-Azkār al-Muntakhaba min Kalām Sayyed al-Abrār,
p. 282; Ibn Ḥ azm, al-Muḥ allā, bi al-Athār, vol. 8, p. 513.
the forward market for currencies 113
the need to consider the promise as binding, especially if the party who
receives the promise is involved in a financial obligation, should not be
a point of disagreement.40
The Mālikīs are the most explicit in their support for the legal status of a
promise status and discussed it in detail. Thus, according to Mohammad
Ulesh, “There is no disagreement that the fulfillment of a promise is
recommended. However, there is disagreement concerning its obligation.
Is it obligatory to fulfill any promise or is it just recommended?”41 The
widely accepted opinion is that if the other party, while relying on this
promise, enters into some financial obligation based on that promise,
then the one who makes the promise should be obliged by the court
to fulfill it as his obligation.42 Thus, the final resolution of the Islamic
Fiqh Academy in its fifth session, Decision no. 2, held in Kuwait, stated
that a promise is binding from the religious point of view except when
there is an acceptable excuse. It is also binding in the court of justice
if the promise is dependent on certain reasons and the one promised
has incurred some costs as a result of the promise.
On the other hand, despite the fact that the modern spot transaction
in foreign exchange mentions that delivery will take place immediately,
in practice this is not the case in most instances, specially when the dif-
ferent banks are located in different countries. Generally, a spot foreign
exchange is defined as an agreement to deliver a specified amount of
foreign currency at an agreed price, usually within one or two business
days and sometimes on the same day.43 However, this delay of two days
does not prevent a western scholar from considering it as a contract
of immediate delivery. However, in Islamic law such a delay may pose
some legal problems and could be considered as a forward contract
rather than a spot one.
Saud Mohammad argued that considering such a transaction as a
spot transaction is misleading from the Islamic point of view, since
40
Yousuf al-Qaraḍāwī, “al-Wafāʾ bi al-Waʾd,” Majallat Majmaʿ al-fiqh al-Islāmī, vol. 1
no 6., pp. 849–856. For similar opinion and investigation see also ʿAbd- Allāh Ibn Manīʿ,
“al-Wafāʾ bi al-Waʿd wa ḥukm al-Ilzām bihi”; Harūn Khalīfa, “al-Wafāʾ bi al-waʾd fi al-
Fiqh al-Islāmī”; Ibrahim Fāḍil al-Dabu, “al-Wafāʾ bi al-waʾd” in the same journal.
41
Mohammad ʿUlesh, Fatḥ al-ʿAlii al-Mālik fi al-fatwā ʿalā Madhhab al-Imām Mālik,
vol. 1, pp. 254–258.
42
See, for instance, Shihab al-Dīn al-Qarāfī, al-Furūq, Dār al-Maʿārifah, Beirut, vol. 4,
pp. 21–25.
43
Peter S. Rose, Money and Capital Market—The Financial System in the Economy,
Business Publications, 1986, p. 791.
114 chapter four
delivery will take place after two working days. The exchange of offer
and acceptance by telex or any other electronic media could not be
considered as delivery because a real delivery will take place only when
the other party has withdrawn the exchanged money from his account
or he is in position to do so. Therefore, the modern spot foreign cur-
rency exchange could not be considered as a spot currency transaction.
It is, then, an illegal transaction according to the Qurʾān and Sunnah.44
However, Saud went on to suggest that the delay of two days in such
a transaction could be minimized by the opening of a mutual current
account with all the banks that the Islamic bank deals with. Thus, after
a spot transaction, both banks will be able to transfer immediately the
exchanged amount to the account of its counterpart.
Commenting on such a situation, Akram Khān wrote
The contemporary practice of allowing a two-day lag cannot be accepted
in the Islamic framework. One alternative could be that the exchange is
effected simultaneously by involving correspondent banks or agents at the
same situation. For example, suppose a bank in Ottawa wants to exchange
US dollars for Australian dollars, and the Australian bank is based in
Canberra. The Canberra bank may authorize a corresponding bank in
Ottawa to carry out the above transaction on its behalf simultaneously or
the Canadian bank may authorize a corresponding bank in Canberra to
execute the said transaction on its behalf. In brief, some mechanism will
have to be devised to execute the transaction simultaneously.45
However, in this particular case since the concept of account record or
al-qabḍ al-ḥ isābi, which is recognized by many contemporary Muslims
as a legal one the issue could be accommodated under it. Moreover,
such a transaction has become a necessity and we should not stick to
the literal meaning of the ḥ adīth. Furthermore, the whole concept of
qabḍ is based on custom and, therefore, whatever means judged by the
experts to be so should be accepted.
More importantly, the Islamic Fiqh Academy in its resolution 55/4/6,
March 1990, regarding “Al-qabḍ or Taking of Possession, its New Forms,
and Their Rules,” maintained that:
44
Saud Mohammad al-Rubaya’, Taḥ wīl al-Maṣrif al-Ribawī ilā Maṣrif Islāmi Wa
Muqtadayātuhu, Markaz al-Makhtūtāt wa al-Turāth wa al-Wathāʾiq, vol. 1, p. 278.
45
Muhammad Akram Khān, “Commodity Exchange and Stock Exchange in Islamic
Economy,” p. 103.
the forward market for currencies 115
46
See Majallat Majmaʿ al-Fiqh al-Islāmī, no. 6, vol. 1, 1990, pp. 771–772.
47
Ibid., pp. 734–735.
116 chapter four
48
See Obiyathulla Ismath Bacha, “Derivative Instruments and Islamic Finance: Some
Thoughts for a Reconsideration,” p. 5.
118 chapter four
49
Seyed ʿAbd al-Jabbār Shahabudin, “Comment on Akram Khān’s ‘Commodity Ex-
change And Stock Exchange in Islamic Economy’ , ” Journal of Islamic Economics, Inter-
national Islamic University, Malaysia, vol. 1, no. 2, July 1988, p. 72.
50
The forward contract dominates the currency market with seventh-three percent
of the total market. It is followed by the swap market with eighteen percent, the options
market at 3.5% and the futures market at one percent. See S. Sagha Balvinder, “Financial
Derivatives: Applications and policy Issues”, Business Economics, The Journal of the
National Association of Business Economists, vol. xxx, Jan 1995, p. 48.
THE FUTURES MARKET
CHAPTER FIVE
to be futures contracts under section 2B1 but does not include an agree-
ment (aa) which is (i) a currency swap; (ii) an interest rate swap; (iii) a
forward exchange rate contract; or (iv) a forward interest rate contract,
authorized by Bank Negara and to which a licensed institution is a party;
(bb) which when entered into in a class of agreements prescribed not
to be futures contracts; (cc) or which is prescribed to be an agreement
that is not to be traded in on a futures market.”
Thus, the Futures Industry Act divides futures contracts into four
categories:
The main purpose of the futures market is to hedge risks. Thus futures
markets do not arise if the price of the commodity is not uncertain.
Uncertainty about prices arises from uncertainty about the supply and
demand of commodities. Thus, even though most seasonally produced
agricultural commodities are grown during some part of the year around
the world, supply is uncertain because the quantity of the harvest may
be affected greatly by weather conditions.
1
The Ministry may, by order published in the Gazette, prescribe any agreement or
class of agreements to be a futures contract.
2
Securities Commission, Malaysian Futures and Options: Regulations Module 1,
Securities Commission, Kuala Lumpur, 1999, pp. 2–7.
concept and scope of futures contracts 123
1. The supply and demand that relate to the underlying commodity must
be large. In small markets, producers and users of the commodity
find it preferable to deal directly with each other rather than having
someone incurring the expense of setting up a futures market.
2. Prices must fluctuate or be volatile. If they are stable or nearly so
then there is no incentive for hedgers to hedge or for speculators to
participate in the market.
3. The commodity traded should be quantifiable to permit standard-
ized tests to grade quality. Quality should be described by objective
criteria, accepted by the industry. To ensure that the grading of the
commodities does not change, regular government inspections have
to be carried out.
4. Futures trading is unlikely to succeed in noncompetitive markets
where production of the underlying commodity is monopolized or
where buyers are few. In such markets, the danger is too great that
the cash price can be manipulated to produce artificial gains in the
futures contract. Thus, objective price information should be read-
ily available to the market participants. It should reflect the price of
the traded commodity, the accuracy of the spot price, and show its
relation to the futures price.4
3
See Hans R. Stoll, Robert E. Whaley, Futures and Options Theory and Applications,
Southwestern Publishing Co., 1993, p. 77.
4
See Robert E. Fink and Robert B. Feduniak, Futures Trading Concepts and Strate-
gies, New York Institute of Finance, 1988, pp. 14–16; Edward J. Swan (ed.), Derivatives
Instruments Law, Cavendish Publishing Limited, pp. 60–61.
124 chapter five
The present study has already elaborated on the concept of the forward
contact. However, due to confusion between the forward and futures
contract and the overlap between them in the written works of some
scholars, it seems necessary to enumerate the distinctions between the
two contracts.
Futures contracts began as forward contracts where buyers and sellers
agreed to sell or to take delivery of a specified quality and quantity of
a commodity at a specified future date. The use of forward contracts
became a necessity once spot markets proved their inability to handle
excess supply or excess demand for commodities. For example, the
dumping of excess grain in the Chicago River of the United States
became a common practice among wheat producers who where unable
to sell their harvest in the spot market because of excessively low prices
and the absence of adequate storage facilities.
The forward contract was only a partial answer to the problem. While
it matched buyers with sellers, so that farmers were assured of a sale at
a certain price and users were assured of an adequate supply of com-
modities at a known price, the forward contract was unable to provide
a price risk mechanism due to sudden changes and was not sufficiently
liquid.5 Thus, the need for a futures market arose. In fact, the forward
contract is the fundamental building block on which futures markets are
based. In other words, a futures market is a special kind of organized
forward market.
However, the futures contract, as distinct from a mere forward con-
tract entered into by any prudent producer or user of a commodity,
has several special features:
5
See Yeo Keng Un, Investment & You, Pelanduk Publications, Selangor Malaysia,
1991, p. 215.
concept and scope of futures contracts 125
6
See P.J. Ottino, “Oil Futures: The International Petroleum Exchange of London,” Jour-
nal of Energy & Natural Resources Law, London, Sweet & Maxwell, 1985, pp. 1–2.
126 chapter five
7
See S. Craing Pirrong, David Haddock and Roger Kormendy, Grain Futures Contract:
An Economic Appraisal, Kluwer Academic Publishers, Boston, 1993, p. 2.
concept and scope of futures contracts 127
Daily price limits will remain at RM 200 when the preceding day’s settle-
ment prices of all three quoted months immediately following the current
month settle at a limit of RM 200.
Reportable Position: 100 or more open contracts, either long or short, in
any one-delivery month.
Speculative Position: 500 contracts net long or net short, for any delivery
months combined.
Transaction Limit: Each single transaction shall not exceed twenty lots.
Last Trading Day: A contract month expires at noon of the fifteenth of the
month; if the fifteenth is a nonmarket day, it expires the preceding business day.
Tender Period: First business day to the twentieth day of the delivery month;
if the twentieth is a nonmarket day, the preceding day.
Contract Grade and Delivery Points: Crude Palm Oil of good merchantable
quality, in bulk, unbleached, in Port Tank Installations located at the option
of the seller at Port Kelang, Butterworth/Prai and Pasir Gudang. Free Fatty
Acids (FFA) of Palm Oil delivered into Port Tank Installations shall not
exceed four percent and from Port Tank Installations shall not exceed five
perent moisture and impurities shall not exceed 0.25%.
Deliverable Unit: Twenty-five metric tons, plus or minus not more than
two perent. Settlement of weight differences shall be based on the simple
average of the daily Settlement Prices of the delivery month from: (a) the
first business day of the delivery month to the business day immediately
preceding the last day of trading, if the tender is made on the last trading
day or thereafter.
Trading Hours: Malaysian Time, on each business day
10:30 a.m.–12:30 p.m.
3:00 p.m.–6:00 p.m.
128 chapter five
8
See Robert E. Fink and Robert B. Feduniak, Futures Trading Concepts and Strate-
gies, Institute of Finance, New York, 1988, pp. 3–5.
130 chapter five
correct interpretation of these principles clearly shows that they are not
applicable to the forward contract in commodities, the specific issue of
our discussions.
Therefore, since we have already established the legality of the forward
contract in physical commodities in particular, the possibility of a futures
commodity exchange from an Islamic perspective will arise and will
be addressed in this part of the study. On the other hand, the second
alternative will be grounded on salam and ‘istiṣnāʿ as an alternative to
the conventional forward contract.
9
See David Courtney and Eric C. Bettelhim, An Investor Guide to the Commodity
Futures Markets, London, Butterworths, 1986, p. 3; Anthony F. Herbest, Commodity
concept and scope of futures contracts 131
Futures Markets Methods of Analysis, and Risk Management, John Wiley & Sons, 1986,
New York, p. 2; The Reuters Financial Training Series, An Introduction to Derivatives,
p. 40.
10
See Seyed ʿAbdul Jabbār Shahābudīn, “Regional Experience of Exchanges (KLCE/
KLFM, SIMEX, SFE),” presented at The 1995 Malaysian Capital Markets Conference,
12–13 June, 1995, The Kuala Lumpur Hilton, organized by Securities Industry Develop-
ment Center, Securities Commission and managed by Asian Strategy and Leadership
Institute, pp. 1–2; Seyed ʿAbdul Jabbār Shahābudīn, “Futures Market in Malaysia,”
Financial Derivatives and Risk Management Workshop, 7–10 October 1996, the Legend
Hotel, pp. 1–4.
11
Ibid.
132 chapter five
12
Seyed ʿAbdul Jabbār Shahābudīn, “Futures Market in Malaysia,” Financial Deriva-
tives and Risk Management Workshop, 7–10 October 1996, the Legend Hotel, pp. 2–4.
13
Seyed ʿAbdul Jabbār Shahābudīn, “Regional Experience of Exchanges (KLCE/
KLFM, SIMEX, SFE),” The 1995 Malaysian Capital Markets Conference, 12–13 June,
1995, The Kuala Lumpur Hilton, organized by Securities Industry Development Cen-
ter, Securities Commission and managed by Asian Strategy and Leadership Institute,
pp. 6–7.
14
Seyed ʿAbdul Jabbār Shahābudīn, “Financial Derivatives and Risk Management,”
Workshop organized by the Securities Commission and The Options and Clearing Cor-
poration, 10–13 Oct., 1995, p. 3.
concept and scope of futures contracts 133
15
Securities Commission, Malaysian Futures and Options Regulations Module 1, p. 5.
16
See for instance, T.H. Stewart (ed.), Trading in Futures, Woodhead Faulkner Lim-
ited, Cambridge, fifth edition, 1989, p. 1.
17
Sahīh Muslim, vol. 10, p. 169.
134 chapter five
Some Muslim economists have stressed the need for a futures market.
Obaidullah, for instance, argues that it might be safer for Islamic schol-
ars to be on the side of conservatism by declaring these contracts to
be illegal. However, such a position may have serious consequences for
Islamic business in the long run. Thus, in an increasingly competitive
and sophisticated business environment, denying Muslim businessmen
the use of a flexible and powerful array of instruments may place them
at a disadvantage.18
Fahīm Khān has also argued in favor of an Islamic futures market.
However, his attempt has been affected by the prevailing differences of
opinion regarding some of the issues constituting the legal foundation
of futures contracts. Sometimes he even rejects the opinions that are
in line with the general principles of the sharīʿah for the simple reason
that they are not preferred by some modern scholars. Thus his study
has many limitations.19
Similarly, Munzir Khaf has argued in favor of such a market while
explaining the features of futures contracts to Muslim jurists and dis-
cussing the legality of futures contracts at the Islamic Fiqh Academy. He
has pointed to the fact that the futures market is the only market where
large business deals are concluded and is an effective means for price
discovery. Moreover, he warns that even if the Fiqh Academy passed
a negative decision on these markets, an Islamic alternative must be
18
Obiyathulla Ismath Bacha, “Derivatives Instrument and Islamic Finance: Some
Thoughts for Reconsideration”, p. 9.
19
See Fahīm Khān, Islamic Futures and Their Markets with Special Reference to Their
Role in Developing Rural Financial Market, Islamic Development Bank, Jeddah, Saudi
Arabia, 1995.
concept and scope of futures contracts 135
sought due to the importance and real benefits and objectives of these
markets, especially in the commodities market.20
This stand has been echoed by ʿAbdel-Ḥ amīd al-Ghazālī who stresses
the real benefits of futures markets, especially their effect on supply,
cost, and business planning and the fact that these genuine benefits
should be taken into consideration.21 Indeed, this concern voiced by the
economists has influenced some jurists attending the above forum, such
as ʿAbd Allāh bin Beh and Mukhtār al-Salāmī, They argued that there
is a real need for such a market by pointing out that modern Muslim
jurists must address such problems according to modern circumstances,
and scholars must not limit themselves to quote what is recorded in
classical fiqh and pass a prohibitive decision.22
Unfortunately, this concern has not been reflected in the final resolu-
tion of the Academy. Perhaps this was due to the stand of some scholars,
such as Ṣiddīq al-Ḍ arīr who asserted that any possible alternative to
futures contracts should be based on salam and must fulfill its con-
ditions.23 It should be noted that Khaf in his elaboration pointed that
salam in its actual form could not serve this purpose due to the fact
that in salam the price must be paid in advance.24
On the other hand, a futures exchange provides some specific ben-
efits to the economy as a whole, such as risk shifting, price discovery,
enhanced liquidity, and increased information flow. Normally, the
producers or manufacturers of a product would like to determine by
themselves the price of their product, but in terms of economics, the
fixed price system results in resource misallocation and high cost, etc.
Primarily, agricultural products are subject to a market price system,
which sets the equilibrium between production and consumption. This
is because the volume of supply and demand for most agricultural
products is beyond the scope of regulation of either government or
producers. Commodity exchanges have been established in order to
avoid losses due to price fluctuations that can result from the law of
supply and demand.25
20
Majallat Majma. ʿal-Fiqh al-Islāmī, 1991, no. 7, vol. 1, pp. 620–621.
21
Ibid., pp. 639–640.
22
Ibid., pp. 626–627, 641.
23
Ibid., p. 634.
24
Ibid., p. 641.
25
Hiromu Takahashi, “Commodity Futures Trading and its Role in Business Manage-
ment,” The Proceeding of the Malaysian International Symposium on Palm Oil Processing
136 chapter five
Risk shifting was the main reason for the development of futures
markets. Typically, hedgers use futures to reduce their exposure to
price fluctuations. The futures market permits commercial producers,
processors, end users, and traders to look for a price for their products.
Industrial processors, for example, may choose to eliminate the price risk
involved in buying, storing and eventually using their raw materials. In
a market economy, manufacturers run the risk of large changes in the
prices of the raw material or the final products between the time they
buy their raw material and the time they sell their final products.26
Liquidity is another major benefit of the futures market. Thus, if risk
is to be transferred efficiently, there must be a large group of traders
ready to buy and sell. When a hedger wants to sell futures contracts to
protect his business position, he cannot afford to wait around for a long
time for a buyer. He needs to know whether he will be able to effect the
transaction quickly whenever he wishes to do so. The futures exchange
brings together a large number of traders and speculators, thus making
quick transactions possible.
Moreover, the development of production techniques of the com-
modities, which are adaptable to futures trading, must be susceptible
to standardization and grading. The quality in each grade must also be
standardized. Therefore, producers should work to improve produc-
tion techniques so that their commodities may have proper grade and
standard to be traded in a favorable market. In addition, as producers
and organizations connected with commodities markets make efforts
to improve their own situation, the level of education and knowledge
about the marketing of their products will be elevated.27
Referring to some of the advantages considered by the Malaysian gov-
ernment for the establishment of its own Commodity Futures Exchange,
we may mention that, considering the fact that Malaysia is the largest
producer and exporter of rubber, palm oil, and tin, to allow a number
of futures commission houses (owned sometimes by foreigners) to
offer overseas commodity futures to the public represents, in fact, a
disadvantage to the national economy. The establishment of a local com-
and Marketing 17–19 June 1976, edited D.A. Newal, The Incorporated Society of Planters,
Kuala Lumpur, 1977. p. 515.
26
See International Trade Center UNCTAD/GATT, Cocoa: A Trader’s Guide, Geneva,
1987, p. 140.
27
Hiromu Takahashi, “Commodity Futures Trading and its Role in Business Man-
agement,” 515.
concept and scope of futures contracts 137
28
See Yeo Hwee Ying, “The Kuala Lumpur Commodity Exchange (KLCE) Case Study
of the Crude Palm (CPO) Futures Market,” Singapore Conferences on International Busi-
ness Law, Conference 3: Current Development In International Securities, Commodities
and Financial Futures Markets, Shangri-La Hotel, Singapore, Organized by the Faculty
of Law National University of Singapore, Part two, p. 213.
29
Dato Bek Neilsen, International Symposium on Commodity Futures Trading,
Kuala-Lumpur 21–22 October, 1980, p. 8.
30
See Doreen Soh, Invest in Commodities, Gold and Currencies, Times Books Inter-
national, Kuala Lumpur, 1995, p. 10.
138 chapter five
31
Edward J. Swan (ed.), Derivatives Instruments Law, Cavendish Publishing Limited,
p. 87.
32
See the weekly news magazine, Times, October 9, 2000, vol. 156, no. 14, p. 40.
33
Fatimah Mohd, Arshad and Zainalabidin Mohamed, “The Efficiency of the Crude
Palm Oil (CPO) Futures Market in Establishing Forward Prices,” The Malaysian Journal
of Agricultural Economics, vol. 8, December, 1991, p. 26.
concept and scope of futures contracts 139
34
See Yeo Hwee Ying, “The Kuala Lumpur Commodity Exchange (KLCE) Case Study
of the Crude Palm (CPO) Futures Market,” Singapore Conferences on International Busi-
ness Law, Conference 3: Current Development In International Securities, Commodities
and Financial Futures Markets, Shangri-La Hotel, Singapore, Organized by the Faculty
of Law National University of Singapore, Part Two p. 212.
35
See ʿAbd. Rahīn Aki, “Tin and the Kuala Lumpur Commodity Exchange,” Inter-
national Symposium on Commodity Futures Trading, Kuala-Lumpur, 21–22 October,
1980, p. 1.
140 chapter five
forming part of the futures exchange that clears, settles, and registers
futures contracts; and it makes adjustments to the contractual obliga-
tions out of those futures contracts.36 Clearing house facilities in relation
to futures market include any one or more of the following in relation
to the futures contracts traded on that futures market: (a) matching
of trades; (b) registration; (c) settlement; (d) guaranteeing or being a
counterparty; and margining.37
The evolution of the Malaysian clearing system started with the Kuala
Lumpur Commodities Clearing House Sdn Bhd (KLCCH), which was
incorporated in June 1980 as a joint venture between International
Commodities Clearing Holding of London and several leading banks in
Malaysia. From its inception until 1984, the KLCCH was independently
and separately run from the KLCE. Upon revamping in 1985 after the
crisis, it was decided that an independent clearing system would not
be in the best interest of the industry and hence the Malaysian Futures
Clearing Corporation (MFCC) was established. This new clearinghouse
is structurally different from its predecessor in that the KLCE and the
clearing members own seventy percent of its equity.38
The clearinghouse serves several important functions, such as the
registration of the different contracts concluded, substitution of counter-
parties, guarantee of performance, settlement of contracts, management
of physical delivery, and monitoring of members’ positions. Thus, the
MFCC progressively records the deal being concluded on the trading
floor by means of a trading slip signed by both the buyer and the seller.
The deals are processed overnight and the next morning a statement is
issued to each clearing member detailing the trades registered in their
account. Once the clearinghouse accepts the contract for registration,
it will substitute itself as the counterparty to the contract. It becomes
the buyer to the seller and the seller to the buyer. This is important in
facilitating the settlement of contracts and the buyer will have a contract
with the clearinghouse to purchase the commodity and the seller will
have a contract with the clearinghouse to sell the commodity. This func-
tion, termed novation, is one of the distinguishing features of exchange
traded futures and options markets.39
36
Futures Industry Act, 1993, p. 2.
37
Futures Industry (Amendment) Act 1995, p. 3.
38
See Yeo Hwee Ying, “The Kuala Lumpur Commodity Exchange (KLCE) Case
Study of the Crude Palm (CPO) Futures Market,” p. 219.
39
Rodney Parker, “Clearing and Guarantee Function,” Commodity Futures Course,
concept and scope of futures contracts 141
the futures markets to minimize the risk of losses from price changes
inherent in owning the commodities. Generally, a hedger assumes a
position in the futures market which is in opposition as well as equal
to what he already holds in the physical market.42
In contrast, a speculator does not have any ongoing commercial
interest in the physical commodity. A speculator is one who is willing
to take risks by speculating on the future course of prices. A specula-
tor is solely motivated by profit and will generally not be interested in
using the commodities in which he trades.43
In free market economies the prices of many primary goods fluctuate
with the demand and supply conditions. Prices are also affected by the
transportation and storage of the commodity during its physical distri-
bution. Hedging plays an important role as a tool of risk management.
It is a process used to minimize commodity marketing and processing
losses that arise due to adverse price fluctuations.
A producer (farmer or mining company), a processor, or a consumer
may all need to ensure themselves against unforeseen fluctuations in
the price of raw materials which they sell or use as the basis of their
business; an exporter/importer may additionally want to ensure his
safety from currency fluctuations that might adversely affect his profit
margins. In all these cases, the speculator acts as the counterparty to
accept the risk in the hope of making a profit by predicting the trend
of the market. For example, for a farmer who is growing corn and is
planning to sell it in six months, the price may be either lower or higher
than what he expects now or anticipated when he planted his corn. If
the price turns out to be significantly lower, the farmer may be forced
to sell the corn at a price that does not even the cover production costs,
which may end in bankruptcy. If, on the other hand, the price turns out
to be higher, the farmer would make unexpected profits.44
Alternatively, an airline company may wish to set passage fares that
will remain fixed for long periods of time. To fix a profitable rate of
fares, they must estimate their expected costs. However, they are at the
same time subject to suffer the risk of unexpected rise of cost that may
squeeze profit margins. The cost of jet fuel for a typical carrier accounts
42
See David A. Chaikin and Brendan J. Mother, “Commodity Futures Contracts
and the Gaming Act,” Lloyd’s Maritime and Commercial Law Quarterly, (1986) 2, pp.
391–392.
43
Ibid.
44
See Franklin R. Edwards and Cindy W. Ma, Futures and Options, pp. 102–103.
concept and scope of futures contracts 143
for about seventeen percent of the total expenses. A one per cent per
gallon rise in jet fuel prices, therefore, increases costs substantially and
can have a significant effect on earnings per share. Thus, the farmer and
the airline carrier are both exposed to price risks.
The ultimate goal of any business is, of course, to make profits. It is
only the price variation in output and input that brings about varia-
tion in revenues and costs. Changes in sales revenue can occur either
because of changes in prices or because of changes in the quantity sold.
For example, the above farmer may have anticipated growing 500,000
bushels of corn, but due to unfavorable weather conditions managed
to harvest only 300,000 bushels. Thus, even if he correctly anticipated
corn prices, he would still find his sale revenue drastically reduced. This
type of risk is called quantity risk and it cannot be hedged with great
precision, whether through futures, options, or any existing forward
instruments. So it should be kept in mind when designing a hedging
strategy.45
Addressing the issue, many Muslim scholars maintained that hedg-
ing is valid from the sharīʿah point of view because it allows traders to
hedge themselves against unforeseen price fluctuations. That is why it
was upheld by the participants in the Sixth al-Barakah conference that
hedging is permissible if the issue of contract is permissible.46
45
Ibid., p. 103.
46
See al-Fatāwā al-Iqtiṣādiyyah al-Ṣādirah ʿan Nadwat al-Barakah li al-Iqtiṣād
al-Islāmī, edited by Abd al-Sattār Abū Ghuddah and others, Dallah al-Barakah, Jeddah,
1995, p. 42.
144 chapter five
47
Kamāli, “The Permissibility and Potential of Developing Islamic Derivatives as
Financial Instruments,” IIUM Journal of Economics & Management 7, no. 2, 1999, p. 77.
48
Fahīm Khān, Islamic Futures and Their Markets, p. 46.
concept and scope of futures contracts 145
allow farmers and producers to shift their risk to those who would be
ready to bear these risks? And is it possible to have an Islamic futures
market with only hedgers? However, Fahīm Khān did not explain how
to differentiate between his two kinds of speculators except by the sug-
gestion that they will have to establish that they are bona fide traders/
producers and would deal in real goods and services and would not
merely gamble.49
Some other scholars have tried to make the distinction between
speculation and games of chance on the grounds of the availability
of information. Therefore, it is only in the absence of information or
under uncertainty that speculation is akin to a game of chance and is
reprehensible. This suggests that speculation is a process that relies on
the analysis of a lot of economic and financial data, companies’ financial
reports, information about management skill and aptitude as well as the
personal profile of decision makers. All this information is analyzed
before a decision is taken.50
Nevertheless, the issue seems to be not totally out of hand. A well-
regulated market might reduce speculation to an acceptable level. Thus,
some scholars have come up with some propositions on how to curb
speculation. While suggesting some possible means to curb specula-
tion, Hussin Salamon, for instance, maintains that speculative business
instruments must be excluded from the Islamic model. These include,
he suggested, margin trading, short selling, market rigging, manipula-
tion, cornering, and rumor and options trading. Moreover, he observed
that to differentiate between speculation and investment is not easy. The
word investment connotes that the arrangement will continue for a long
time and that the principal is safe, while speculation connotes speed
and high risk. Thus, he suggested that the appropriate time duration
for share holding, for instance, should be six months while it would be
ideal if a one-year period could be considered.51
However, given the fact that time and risk are relative, any suggested
period is relative. For example, a sum of money is used to buy a house
with the intention of renting it out and selling it when the price rises
49
Ibid.
50
Aḥmad Abdel Fattah, “Toward an Islamic Stock Exchange in a Transitional Stage,”
p. 82; Mohammed Obaidullah, “Islamisation and Stock Market Efficiency,” New Horizon,
July, 1997, p. 10.
51
Husein Salamon, “Speculation in the Stock Market from the Islamic Perspective,”
p. 43.
146 chapter five
in, say, two years time. To one person, this activity is an investment, as
two years are long term in this reckoning of time; another person may
view this as speculation, since he interprets long term to be ten years
or more.52 Moreover, imposing a period for holding the commodities or
shares before reselling them will definitely create a problem of liquidity
even for genuine traders. Hussin Salamon, for instance, advanced some
suggestions; however, the practicable dimensions of those suggestions
might carry with them some problems. He observed that
An urgent need for cash by genuine investors for their personal spending
could be met through several ways. First through various welfare funds
operating within the Islamic environment such as from zakah (compulsory
charity) bayt al-māl (treasury of the state) and qarḍ ḥ asan (welfare) fund.
Second, every company could organize its own fund to cater to investors’
emergency need for cash. Third, if the above ways are not available, the
authority (or a special committee could be established by the authority to
handle such a problem) of the alternative model is responsible to verify the
genuine nature of the investors’ need. If it is genuine, the investors should
be allowed to liquidate their shares, while having to pay the tax.53
It is worth noting that zakah will definitely not be used to manage market
problems. Similarly, it is difficult to imagine anybody or organization
that will provide qarḍ ḥ assan for the market without any return.
Another commentator went to the extent of saying that to curb specu-
lation we have to look at people’s intentions because to be a shareholder
in an Islamic company one must have a real intention and not a virtual
one (shaklī).54 However, this argument is opposed by other scholars who
consider the issue of intention as impracticable and moreover it is not a
sharīʿah requirement that a person should perform a niyyah (religious
intention) before concluding a sale contract.55
Similarly, Aḥmad Muḥyī al-Dīn was very critical of speculation. After
raising doubt about the economic benefits of speculation and hedging
as means for price discovery and liquidity, Muḥyī al-Dīn maintained
52
See Doreen Soh, Invest in Commodities, Gold & Currencies, p. 14.
53
Husein Salamon, “Speculation in the Stock Market from the Islamic Perspective,”
p. 44.
54
See Saif al-Dīn Ibrāhim Taj al-Dīn, Naḥwa Namūzaj Islāmī Lisūq al-Ashum, Journal
of Research In Islamic Economics, King ʿAbd al-Azīz University, Saudi Arabia, vol. 3
no. 1, 1985, King ʿAbd al-Azīz University, Saudi Arabia, p. 61.
55
See Muhammad ʿAbd al-Halīm Omar, “Al-Jawānib al-Sharʿiyyah al-ʿĀmmah Li
al-Sharikāt al-ʿĀmilah fi Majāl al-Awrāq al-Māliyyah,” al-Iqtiṣād al-Islāmī, Dubai, no.
204, March 1998, p. 810.
concept and scope of futures contracts 147
56
See Aḥmad Muhi al-Dīn, Aswāq al-Awrāq al-Māliyyah wa Athāruhā al-Inmāiyyah
fi al-Iqtiṣād al-Isālmi, Dallah al-Barakah, Saudi Arabia, 1996, pp. 479–521.
57
Ibid., p. 606.
58
For a full account of these objections, see Aḥmad Muhi al-Dīn, Aswāq al-Awrāq
al-Māliyyah wa Athāruha al-Inmāʾ iyyah fi al-Iqtiṣād al-Isālmi, pp. 579–607.
148 chapter five
59
Al-Zuahili, Bayʿ al-Ashum, Dār al-Maktabi, Damascus, 1997, pp. 33–34; Muham-
mad al-Mukhtār al-Salāmi, “al-Mutajarah Bi Ashum Sharikat Gharaduhā wa Nash’atuhā
Mubāh Lakinnahā Tuqrid wa Taqtarid Bi Fāʾidah”, ʿAmāl al-Nadawh al-Fiqhiyyah
al-Khāmisah, Bayt al-Tamwīl al-Kuwaiti, Kuwait, (2–4 November, 1998), p. 23.
60
Majmaʿ al-Fiqh al-Islāmī, Qarārāt wa Tawṣiyāt (1985–1988), al Dawrah al- Rābiʿah
Qarār no. 3 Zakāt Ashum al-Sharikāt, pp. 61–62.
61
Muhamad Akram Khān, “Commodity Exchange and Stock Exchange in Islamic
Economy,” American Journal of Islamic Social Sciences, vol. 5, issue. 1, 1988, p. 101.
62
Ibid.
150 chapter five
63
See, Husein Salamon’ paper “Speculation In the Stock Market form the Islamic
Perspective”, pp. 17–18; al-Iqtiṣād al-Islāmī, “al-Mudārabāt al-Ribawiyyah Warāʾ Azmat
al-Būrṣah” (Conference report), issue no. 202, September 1997.
concept and scope of futures contracts 151
64
For more detail, see Yeo Hwee Ying, “The Kuala Lumpur Commodity Exchange
(KLCE) Case Study of the Crude Palm (CPO) Futures Market,” pp. 229–232.
65
Ibid.
152 chapter five
66
For more detail, see Mohamed Ariff and others, Currency Turmoil and the Malay-
sian Economy—Genesis, Prognosis and Response, Malaysian Institute of Economic
Research, Kuala-Lumpur, 1998, pp. 2–8.
concept and scope of futures contracts 153
Besides these factors, many other factors contributed to the 1997 crisis
as the Malaysian Institute of Economic Research concluded in its study
that stated:
Currency speculators have no doubt contributed to the present turmoil in
financial markets. This has resulted in the ringgit depreciating excessively.
However, it is to be noted that speculators would not have succeeded had
there been no weaknesses in the micro and macroeconomic fundamentals
in the first place.68
On the other hand, it should be noted that the speculation in the 1997
crisis was basically a currency speculation which affected the banking
and other sectors of the economy.69 However, at the beginning of the
crisis, the commodity futures market in Malaysia represented by the
crude palm oil futures was almost unaffected until the imposition of
capital control in 1998. Turnover on the Commodity and Monetary
Exchange of Malaysia’s Crude Palm Oil (CPO) Futures Market in 1998
was 353,539 contracts (including Exchange of Futures for Physical-EFP),
or approximately 8.84 million metric tons of crude palm oil compared
with 483,651 contracts or 12.01 million metric tons in 1997, a decline
of twenty-seven percent.
The average daily turnover for the first nine months of 1998 was 1,615
contracts. This, however, fell to 928 contracts per day in the last quarter
as a consequence of the imposition of capital measures in September. For
the entire year, average daily volume was 1,443 contracts compared to
1,958 contracts in 1997. The imposition of capital control had a negative
impact on the market as most of the foreign players closed their posi-
tions. This could be seen in the total open position which fell drastically
by 41.0 percent to 4,597 contracts from 7,785 in 1997.70
67
Ibid., p. 11.
68
Ibid., p. 29.
69
See Mohammad Obadyatullah, “Malaysia from Currency to Banking Crisis,”
Malaysian Journal of Economic Studies, Vol. XXXV, no. 1 & 2, Jun/ December 1998,
pp. 73–94.
70
See Commodity and Monetary Exchange of Malaysia, Update, “The Crude Palm
Oil Futures Market Overview for 1998,” Issue of January 1999, p. 1; Bank Negara, The
Central Bank and the Financial System in Malaysia-A Decade of Change, p. 385.
154 chapter five
Thus, it is clear that the crisis was not the result of speculation, but
rather of structural and regulatory weaknesses in the Kuwaiti Exchange,
its brokerage industry, its clearing system, and its futures industry
management.
71
See Samir Abd al-Ghani Mahmud, “al-ʿAbāʿ al-Qawmiyyah Li Azmat al-ʾAwrāq
al-Māliyyah bi Dawlat al-Kuwait,” Majallat al-‘Ulūm al-Ijtimāiyyah (Jamiʿat al-Kuwait),
no. 14, vol. 1, 1986, pp. 13–34.
72
David County and Eric C. Betteheim, An Introduction Guide to the Commodity
Futures Markets, London, Butterworths, 1986, p. 86.
73
Ibid., pp. 86–87.
156 chapter five
74
Muhamad Akram Khān, “Commodity Exchange and Stock Exchange in Islamic
Economy,” p. 97.
75
Ibid., 97.
76
See M.A. Mannan, “An Appraisal of Existing Financial Instruments and Market
Operation from an Islamic Perspective,” Developing a System of Financial Instruments
(proceedings of a seminar held in Kuala Lumpur, Malaysia, 28 April–5 May 1986),
edited by Mohamed Ariff and M.A. Mannan, Islamic Research and Training Institute
Islamic Development Bank, Jeddah, Saudi Arabia, p. 89.
concept and scope of futures contracts 157
77
New York Institute of Finance, “Futures: A Personal Seminar,” New York 1989,
p. 19.
78
Mohammad El-Gāri, “Stock Exchange Transactions: sharīʿah Viewpoints,” p. 168.
79
Ibid.
158 chapter five
are based on fixed minimums per unit such as ounces, pounds, tons,
or face values of financial instruments established by the exchanges,
but an individual broker may require a large amount if he believes the
minimum involves undue risks for themselves or their clients. Moreover
it should be noted that futures prices frequently remain in quite narrow
ranges for long periods and are not more volatile than typical securities
prices in a similar price range.80
Thus, the three reservations raised by Muslim scholars regarding
the use of margins in securities trading, namely, the issue of interest
rates, the use of margins involving loans that benefit the lender, and
the margin as a kind of combined contract, are not present in futures
commodity trading.
80
Richard J. Teweles, Frank J. Jones, The Futures Game: Who Wins? Who Loses? And
Why, ed. Ben Warwick, McGraw-Hill, New York, pp. 21–22.
CHAPTER SIX
One of the objections to the futures contract is that it involves sale prior
to taking possession. The majority of scholars of the different schools of
Islamic law held that sale prior to taking possession is illegal. Moreover,
most contemporary Muslim scholars have followed in the footsteps of
the majority of early scholars by stressing that sale prior to taking pos-
session is illegal, overlooking the difference of opinions on the issue,
on one the hand, and not analyzing the changing circumstances and
their relevance to the issue on the other. Thus, the two prominent Fiqh
Academies, namely the Jeddah- and Makkah-based, passed negative
judgments on futures contracts and one of their main arguments is that
it involves sale prior to taking possession.1
The juristic debate over the issue is based on several aḥ ādīth reported
from the Prophet (PBUH) stating that “He who buys foodstuff should
not resell it until he receives it.”2 It is also reported that the Prophet said,
“He who buys foodstuff should not resell it until he is satisfied with its
measurement.”3 It is also reported that Ibn ʿUmar said: “At the time of
the Prophet (PBUH) we used to trade on foodstuff. Then, the Prophet
(PBUH) sent to us a person to order us not to resell it unless we move
it to another place.” It was also reported that Ḥ akīm Ibn Ḥ izām asked
the Prophet (PBUH) saying, “I am making different deals, what is legal
for me to do and what is not?” Then the Prophet (PBUH) advised him
1
See Al-Majmaʿ al-Fiqhī al-Islāmī li-Rābiṭat al-ʿĀlam al-Islāmī, Qarārāt Majlis
al-Majmaʿ al-Fiqhī, al-Islāmī, seventh session, from 11–16 Rabiʿ al-ʾĀkhir, 1404 “Sūq
al-ʾAwrāq al-Māliyyah wa al-Badāiʾi (al-Burṣah)” pp. 120–124; Islamic Fiqh Academy’s
resolution no. 64/17 Majallat Majmaʿ al-Fiqh al-Islāmī, 1992, no. 7, vol. 1, p. 398.
2
Saḥ īḥ Muslim, vol. 10, p. 169.
3
See Saḥ īḥ al-Bukhāri with Fatḥ al-Bārī, Book of Sale, vol. 4, pp. 349–350, ḥ adīth
no. 1525 and the following aḥ ādīth.
160 chapter six
saying, “If you buy something do not resell it until you receive it.”4 It is
also reported by Zaid Ibn Thābit that the Prophet (PBUH) prohibited
the sale of commodities which were bought from other traders until
the commodities were relocated by the buyers to their own places.”5
From these aḥ ādīth, Ibn ʿAbbās concluded saying “I think it applies to
other things as well.”6
This opinion has also been followed by the Shāf ʿī jurists maintaining
that it is illegal to resell anything before receiving it or taking possession
of it, whether it is foodstuff or otherwise. They based their opinion on
the literal meaning of the above aḥ adīth. In addition, they argue that
since the commodity is not transferred to the buyer, the seller will still
be liable for any destruction or loss that may affect the buyer. Moreover,
if the buyer resells it to a third person, and the third person to a fourth,
it would be a chain of liability, which might be the source of gharar.7
The second opinion is the Ḥ anafī view. They maintain that it is illegal
to resell anything before receiving it or taking possession of it unless it
is a real property. They argue that reselling anything before receiving
it is a kind of gharar, since the commodity bought may perish or be
destroyed before the buyer receives it and as a result the seller may not
be able to deliver it to the new buyer. However, such a risk or gharar is
very remote in the case of real property. Hence, it should be allowed.
Thus, according to the Ḥ anafīs, the prohibition of reselling before tak-
ing possession is based on the fear of destruction. It is also argued that
such a sale will lead to a chain of liability.8
The third stand is that of the Mālikīs and some Ḥ anbalīs. They
maintain that the above ruling should be restricted to foodstuff only.
They argue that only the aḥ ādīth that mention foodstuff are qualified
(muqāyyadah), while the other aḥ ādīth are general (muṭlaqah). More-
over, the above aḥ ādīth are specific about foodstuff while the other
aḥ ādīth are general. Therefore, as it is the rule in Islamic jurisprudence,
in such a case the specific must prevail.9
4
Musnad Imām Aḥmad, vol. 3, p. 302.
5
Saḥ īḥ al-Bukhārī, Dār al-Qalam, Damascus, 1981, vol. 3, p. 750; Saḥ īḥ Mulim with
al-Nawawi, vol. 10, p. 168.
6
See Saḥ īḥ al-Bukhārī with Fatḥ al-Bārī, Book of Sale, vol. 4, pp. 349–350.
7
Al-Nawawī, al-Majmū Sharḥ al-Muhadhdhab, vol. 9, pp. 264–271.
8
See al-Kasānī, Badāiʾ al-Sanāii, vol. 4, pp. 394–396.
9
Ibn Rushd, Bidāyat al-Mujtahid, vol. 2, p. 142; Ibn Juzai, al-Qawānīn al-Fiqhiyyah,
p. 341; al-Bājī, al-Muntaqā, vol. 4, p. 283.
sale prior to taking possession 161
A fourth opinion is reported from Ata Ibn Abī Rabāh and ʿUthmān
al-Batti, maintaining that it is legal to sell anything before taking pos-
session. However, this opinion has been rejected by other jurists on the
grounds that it totally ignores the previous aḥ ādīth and it is possible
that these scholars may not have come across these aḥ ādīth. The last
opinion is that of Ibn Ḥ azm, who maintains that the prohibition in those
aḥ ādīth should be limited to wheat. This is because the word taʿām that
occurs in the ḥ adīth means wheat and nothing else.10
The positions of Islamic financial institutions and some sharīʿah
boards are also divergent. Thus, it was decided in the al-Barakah sixth
conference, fatwā no. 14, that the prohibition of sale prior to taking pos-
session is confined to foodstuff.11 Similarly, the sharīʿah board of al-bank
Islāmī al-Sudānī preferred the Mālikīs’ opinion and allowed sale prior
to taking possession unless it is foodstuff.12 The sharīʿah board of the
Kuwait Finance House has taken a similar stand in one of its fatwā.13
However, the issue has been the focus of debate between the partici-
pants in the Islamic Fiqh Academy session on al-qabḍ wa ṣuwaruhu
al-mustajiddah (taking possession and its modern aspects). Some of the
participants, such as al-Qaraḍāghī, Nazīh Ḥ ammād, Mukhtār al-Salāmī,
Muahammad Nabīl Ghunaim, Omar Jah and others, consider the pro-
hibition to be confined to foodstuff, arguing that there is no gharar in
reselling before taking possession. People around the world are doing
so without any dispute resulting from such gharar, while in principle
gharar is that risk which will lead to a dispute. On the other hand, other
scholars like al-Ḍ arīr al-Zuhailī, ʿAli al-Sālūs and others maintain that
it includes everything and therefore, it should not be allowed.14
From the above it seems that the third opinion, namely that the prohi-
bition of reselling before taking possession is limited to foodstuff, is the
preferable stand due to the strength of its argument and its suitability to
prevailing market practices, especially if we refer to the ḥ adīth reported
by al-Bukhārī in which he commented by saying, What is prohibited
by the Prophet (PBUH) until the taking of possession takes place is
10
Ibn Ḥ azm, al-Muḥ allā, vol. 9, p. 292.
11
al-Fatāwā al-Iqtiṣādiyyah, p. 37.
12
al-Bank al-Islāmī al-Sudānī, Fatāwā Haʾiat al-Raqābah al-Sharʿiyyah, Qism
al-Amwāl, Idārat al-Tawjīh al-Shariʾ wa al-Buhūth, pp. 14–17.
13
ʿAbd al-Sattār ʿAli Qaṭtạ n, Bayʿ al-Bidāʿa Qabl Ḥ iyāzitihā, Bayt al-Tamwīl al-
Kuwaiti, n.d., pp. 17–19.
14
For more details about this discussion, see Majallat Majmaʿ al-Fiqh al-Islāmī,
(Discussion about al-Qabḍ wa Ṣuwarhī al-Mustajiddah), no. 6, vol. 2, pp. 739–767.
162 chapter six
15
See Ṣahīh al-Bukhāri with Fatḥ al-Bārī, Book of Sale, vol. 4, pp. 349–350, ḥ adīth
no. 1525, and the following.
16
For a full report of these cases, see Ibn Qayyim, Sharḥ Sunan Abī Dāʾūd with ʿAwn
al-Maʿbūd, vol. 9, pp. 386–7.
17
al-Shirāzī, al-Muhadhdhab, vol. 4, p. 280.
18
Ibn Qudāmah, al-Muqhnī, vol. 4, p. 114.
sale prior to taking possession 163
19
See al-Qarāfī, al-Furūq, vol. 3, pp. 281–282; al-Qaradāghī, “al-Qabḍ: Ṣuwaruhu wa
bi Khāssatin al-Mustajiddah minhā wa Ahkamuhā,” Majallat Majmaʿ al-Fiqh al-Islāmī,
1990, no. 6, vol. pp. 568–572.
20
See, Ibn Rushd, Bidāyat al-Mujtahid, vol. 2, p. 144; al-Bājī, al-Muntaqā, vol. 4,
p. 280.
21
al-Shawkānī, Nayl al-Awtār, vol. 5, p. 169.
164 chapter six
A certain debate has arisen about the concept of taʿām (foodstuff) in the
above issue. Some maintain that taʿām is confined only to wheat as ibn
Manzūr reports from ʾahl al-Ḥ ijāz, while others have limited it to dates.
Ibn al-Athīr, on the other hand, maintains that it includes everything
that could be considered as a foodstuff of subsistence (yuqtātu bihi),26
while the Mālikīs, for instance, upheld that it is what falls under zakah.27
Based on the above, it could be said that many of the commodities traded
in the futures market nowadays, although they are foodstuff, are not
basic food of subsistence, such as sugar, coffee, and similar products and,
22
al-Dasughī, al-Sharḥ al-Kabīr, vol. 3, p. 131.
23
See Al-Ḍ arīr, “al-salam wa tatbiqātuhū al-Muʿāṣirah,” Majallat Majmaʿ al-Fiqh
al-Islāmī, 1996, no. 9, vol. 1 p. 402; Bayt al-Tamwīl al-Kuwaiti, al-Fatāwā al-Sharʿiyyah
fi al-Masāʾil al-Iqtiṣādiyyah, p. 534.
24
Bayt al-Tamwīl al-Kuwaitī, al-Fatāwā al-Sharʿiyyah fi al-Masāʾil al-Iqtiṣādiyyah,
p. 535.
25
Kamālī, “Islamic Commercial Law: An Analysis of Futures,” p. 207.
26
For elaboration on the issue, see Ibn Ḥ ajar, Fatḥ al-Bāri, vol. 3, pp. 373–5.
27
See al-Bājī, al-Muntaqā, vol. 4, p. 280; Mahmūd Shammām, Majallat Majmaʿ al-
fiqh al-Islāmī, no. 6, vol. 2, 1990, p. 920.
sale prior to taking possession 165
28
Ibn ʿĀbidīn, Rad al-Muḥ tār, vol. 4; p. 209; al-Buḥūti, Kashshāf al-Qināʿ, vol. 3, p. 293;
al-Kāsānī, Badāi al-Sanāi, vol. 5, p. 214; Ibn Qudāmah, al-Mughnī, vol. 4, p. 334.
29
Abū Dāʾūd, Sunan Abū Dawūd, Matbat Muṣtaphā al-Halābī, 1952, vol. 2, p. 247;
Ibn Mājah Sunan Ibn Mājah, vol. 7, p. 66.
30
However, the ḥ adīth is reported to be weak. See Ibn Ḥ ajar, Talkhīs al-Ḥ abīr fi Takhrīj
Aḥ ādīth al-Rŭfiʿ al-Kabīr, Sharikat al-Tibāa al-Fanniyyah, Egypt, vol. 3, p. 225.
31
Ibn Rushd, Bidāyat al-Mujtahid, vol. 2, p. 231.
166 chapter six
32
Majallat Majmaʿ al-Fiqh al-Islāmī, no. 9, vol. 1, pp. 628–629.
33
Ibid., p. 649.
34
Ibid., p. 652.
35
Ibid., p. 654.
36
Ibid. Islamic Commercial Law: An Analysis of Futures, p. 656.
37
Bayt al-Tamwīl al-Kuwaiti, al-Fatāwā al-Sharʿiyyah fi al-Masāʾil al-Iqtiṣādiyyah,
p. 526.
38
Ibid., p. 532.
39
Ibid., p. 643.
40
Ibn Qudamah, al-Mughni, vol. 4, p. 350.
41
Hasan al-Jawāhiri, “al-Salam wa Tatbiqātuhu al-Muʿāṣiarah,” Majallat Majmaʿ al-
Fiqh al-Islāmī, 1996, no. 9, vol. 1, p. 514.
42
Ṣiddīq al-Ḍ arīr, “al-Shurūt al-Sharʿiyyah li Siḥhạ t Bayʿ al-Salam,” al-Iqtiṣād al-Islāmī,
no. 171, 1995, p. 15; Ṣiddīq al-Ḍ arīr, “al-Shurūt al-Sharʿiyyah li Siḥhạ t Bayʿ al-Salam”,
al-Iqtiṣād al-Islāmī, 1996, no. 9, vol. 1, p. 407.
sale prior to taking possession 167
majority upheld the legality of the parallel salam. Thus, the majority of
the participants in the Islamic Fiqh Academy’s discussion on salam such
as Nazīh Ḥ ammād,43 ʿAli al-Qaradāghī,44 Ḥ asan al-Jawāhirī,45 ʿAbd al
Sattār Abū Ghuddah,46 and Wahbah al-Zuhailī approved its legality.47
It should be noted that the need for parallel salam is not just to build
an Islamically acceptable futures exchange but also to facilitate business
transactions for Muslim investors trading outside the organized market.
Futures trading is not necessarily done through an organized futures
exchange. It could be done over the counter.
Suppose a wholesaler contacts a palm oil refining company for the
delivery of 1000 tons of palm oil to be delivered six months later for
RM 100 per ton. He will pay the price at the conclusion of the contract
as it is the condition according to the majority of Muslim scholars in
a salam contract or after three days or more according to the practice
followed by the Mālikīs and supported by some contemporary scholars.
Immediately he concludes several parallel salam contracts with a number
of palm oil retailers to deliver a similar quantity of palm oil at the same
time as the first contract for RM 110 per ton. Thus, there is no formal
relation between the first salam contract and the following parallel salam
contract but it allows this businessman to manage his business.
43
Majallat Majmaʿ al-Fiqh al-Islāmī, (discussion on salam), 1996, no. 9, vol. 1, p. 628.
44
Ibid., p. 649.
45
Ibid., p. 640.
46
Ibid., p. 645.
47
Ibid., p. 651.
168 chapter six
48
See, Fahīm Khān, Islamic Futures and their Market, pp. 58–59.
49
Ibid.
sale prior to taking possession 169
producer for a million bales of cotton for delivery in six months. The
fund has already entered into different parallel salam contracts in which
it sells cotton under salam contract. The fund’s profits will come from
the difference between the wholesale price and the retail price at which
it is bought and the retail price at which it is sold. These contracts are
totally independent from each other.
The second step toward a viable market is for the fund to make a
market in the retail salam contract, publishing “bid and asked” prices
for entering into contracts as either buyer or seller. If a cotton user
purchases a salam contract but thinks better of it, he can come to the
fund and sell a salam contract for the amount of cotton he is long on at
a price which the fund deems appropriate at that point in time, regard-
less of whether the fund has a counterparty lined up. In the opposite
situation, if a cotton producer had sold a salam contract for his cot-
ton crop several months earlier, locking himself into what he believed
would be a premium price but then the price goes up further and he is
convinced that the price will go up even further, he may approach the
fund to purchase cotton similar to his first contract.50
However, it should be noted that if the fund enters into contracts
as principal, rather than confining itself to merely brokering the par-
ticipants in the market, there is a possibility that the fund may have
in some instances a net position, which is not in balance. Therefore,
the fund needs a larger capital base than if its task is limited to just
executing simultaneous and equal parallel salam. The fund brokers deal
between customers and facilitate such deals by guaranteeing the per-
formance of both parties. Such credit enhancement enables the parties
to transact readily and anonymously, with a net benefit to the parties
on a risk adjustment basis. The fund can guarantee the parties’ obliga-
tion through the charging of administrative costs by doing so and by
recouping its costs from separate sources, such as license fees, service
fees, etc. Salam sellers can give a pledge or rahan for their performance,
similar to a margin in conventional futures contracts. A buyer in one
salam contract can use his investment in that contract as a pledge to
secure his position as a seller in another.51
50
Frank E. Vogel and Samual L. Hayes, Islamic Law and Finance: Religion, Risk, and
Return, pp. 251–252.
51
Ibid.
170 chapter six
52
See ʿAbd al-Sattār ʿAli Qaṭtạ n, Bayʿ al-Bidāʿ Qabl Ḥ iyāzitihā, Bayt al-Tamwīl al-
Kuwaiti, n.d., pp. 18–19.
53
See Al-Zuahilī, Bayʿ al-Ashum, Dār al-Maktabī, Damascus, 1997, pp. 39–41.
54
See Majallat Majmaʿ al-Fiqh al-Islamī, no. 7, and vol. 2, pp. 747–748.
sale prior to taking possession 171
55
See Ibn Ḥ ajar, al-Dirāyah fi Takhtīj aḥ ādīth al-Hidāyah, Dār al-Maʾrifah, Beirut,
vol. 2, p. 157; al-Sanʿāni, Subul al-Salām, Dār ʾIhyā al-Turāth al-ʿArabi, Beirut, 1976,
vol. 3, p. 41; al-Shawkāni, Nayl al-Awṭār, Dār al-Jīl, Beirut, 1973, vol. 5, p. 157; Ibn
Taymiyyah, Majmūʿ al-Fatāwā, vol. 29, p. 473. The only transmitter of this ḥ adīth is
Musā Ibn ʿUbaidah al-Zabadī about whom Imām Aḥmad said that “his transmission
is not permissible (la Taḥillu Riwayatuhu) and there is no ḥ adīth saḥiḥ on the issue.”
Al-Shaf ʿī is also reported to have said the experts on ḥ adīth consider this ḥ adīth as a
weak ḥ adīth (yuwahhinūnahu). See Ibn Qudāmah, al-Mughnī, vol. 4, p. 64; al-Shawkānī,
Nayl al-Awtār, pp. 254–255.
56
Ibn Qudāmah, al-Mughnī, vol. 4, p. 64; al-Shawkānī, Nayl al-Awtār, pp. 254–255.
172 chapter six
57
Al-Subki, Takmilat al-Majmūʿ, vol. 10, p. 107.
58
See Ibn Qayyim, ʿIlām al-Muwaqqiīn ʿan Rab al-ʿĀlamīn, vol. 2, p. 9.
59
Wahbah al-Zuhaili, Bayʿ al-Dayn fi al-sharīʿah al-Islāmiyyah, Dār al-Maktabi,
Damascus, 1997, pp. 50–51.
sale prior to taking possession 173
60
Ibid.
61
Ibn Qayyim, ‘Ilām al-Muwaqqiīn ʿan Rab al-ʿĀlamīn, vol. 2, p. 9.
62
Ibn Taymiyyah, Majmū al-Fatāwā, vol. 29, p. 512.
63
Al-Subki, Takmilat al-Majmūʿ, vol. 10, p. 107.
64
See Ibn Taymiyyah, Majmūʿ al-Fatāwā, vol. 29, p. 472; Nazīh Ḥ ammād, Bayʿ al-Kŭliʾ
bi al-Kŭliʾ (bayʿ al-Dayn bi al-Dayn) fi al-Fiqh al-Islāmi, Markaz Abḥāth al-Iqtiṣād
al-Islāmī, Jŭmiʿat al-Malik ʿAbd al-ʿAzīz, Saudi Arabia, 1986, p. 25; Wahbah al-Zuhaili,
Bayʿ al-Dayn fi al- sharīʿah al-Islāmiyyah, pp. 50–51; Muhammad Atīqī, “Bay al-Dayn
Ṣuwaruhu wa ʾAhkāmuhu Dirāsah Muqāranah,” Majallat al-sharīʿah wa al-Dirāsāt
al-Islāmiyyah, no. 35, August 1998, pp. 313–315; Isāwi Aḥmad Isāwi, “Bayʿ al-Dayn wa
Naqlihi,” Majallat al-Azhar, 1956, no. 2, pp. 165–6.
65
Ibn ʿĀbidīn, Rad al-Muhtār, vol. 4, p. 239.
66
Ibn Taymiyyah, Majmūʿ al-Fatāwā, vol. 29, p. 472.
67
See Jawāhir al-Iklīl, vol. 2, pp. 10–11.
174 chapter six
68
See al-Kāsāni, Badāi al-Sanāi, vol. 5, p. 205; Rad al-Muḥ tār ʿalā al-Dur al-Mukhtār,
vol. 4, p. 209.
69
Ibn Rushd, Bidāyat al-Mujtahid, vol. 2, p. 169.
70
al-Ramlī, Nihāyat al-Muhtāj, vol. 4, p. 1.
71
Ibn Quadāmah, al-Mughni, vol. 4, p. 329; al-Buhūtī, Sharḥ Muntahā al-Irādāt,
vol. 2, p. 221.
72
Ibn al-Mundhir, al-Ijmāʿ, Muʾassasat al-Kutub al-Thaqāfiyyah, Beirut, 1993, p. 76.
73
See Ibn Qayyim, ʿIlām al-Muwaqqʿīn, vol. 2, p. 9; Nazīh Ḥ ammād, bayʿ al-kāliʾ
bi al-kāliʾ, p. 26.
74
Nihāyat al-Muḥ tāj, vol. 4, p. 88; al Suyūtī, al-Ashbāh wa al-Nazāʾir, p. 88; Tashīl
Minaḥ al-Jalīl, vol. 3, p. 235.
sale prior to taking possession 175
75
Al-Subki, Takmilat al-Majmūʿ, vol. 10, p. 107.
176 chapter six
date he fails to secure the RM 10,000 and suggests that the seller buys
the car from him for 12,000 to be paid four months later. The reason
behind the prohibition of such a sale is that the transaction involves
ribā al-nasīʾah.76 However, if he had suggested to him to buy the car
at the same price as the original price, namely RM 10,000 or less, the
transaction will be valid.77
It is clear that such a transaction will lead to ribā al nasīʾah and,
therefore, it may be argued that the prohibition of such a transaction
is not because it involves the sale of debt for debt, but for its involve-
ment of ribā.
The third case is the sale of a debt to a third person at a price to be
delivered on a future date. Suppose one person needs from another one
hundred bushels of wheat from a previous contract to be delivered next
month. Before taking delivery, he resells that one hundred bushels of
wheat to a third person for RM 1000 to be delivered three months later.
The reason behind the prohibition of such a sale is the possible inability
of the seller to deliver the subject matter of the contract. This case is
similar to the case of sale before taking possession discussed above.
However, if we apply this explanation to the futures market it will not
be an issue at all. The clearinghouse will guarantee all contracts.
The fourth case involves selling a debt to a third person at a price to
be paid immediately. Suppose a person is indebted to another for a car
to be delivered two months from now then; he sells it to a third party
for a price to be paid immediately. This is declared by the majority
to be an invalid transaction while the Mālikis allow it on eight condi-
tions which could be summarized into two main categories: it should be
(a) free from ribā and (b) free from gharar.
It is clear from the above elaboration that although some scholars
have cited ribā as one of the causes for the prohibition of the sale
of debt for debt, it seems that gharar is the major cause. However, a
limited kind of gharar is acceptable in the sharīʿah, while an excessive
amount will render a contract illegal. This concept of gharar has close
connection with speculation, which could also be excessive and lead to
market collapse or could be a limited, which is not only desirable but
also necessary sometimes. The following chapter will elaborate on the
regulation of the futures industry in order to avoid market collapse.
76
See Minaḥ al-Jalīl, vol. 2, p. 562; al-Zurqānī, Sharḥ Khalīl, vol. 5, p. 81.
77
Ibid.
CHAPTER SEVEN
Intermediaries in the futures and options market are people who trade
or provide advice on trading to investors. Under the futures industry
Act 1993, six types of intermediary are recognized: Futures Brokers,
Futures Broker Representatives, Futures Fund Managers, Futures Fund
Manager’s Representatives, Futures Trading Advisers and Futures Trad-
ing Adviser’s representatives. However, among all the intermediaries
mentioned here the broker plays the most important role.
In highly competitive environment commodity broking is an impor-
tant part of modern trading. “A future broker, like a stockbroker, is
essentially an agent or intermediary who buys and sells on behalf of
clients in return for a commission; he can also act as principal in cer-
tain transaction.”1
Under the futures industry Act 1993, Futures Brokers must be in the
form of a corporation. Thus, Futures brokers in the Malaysian context,
for instance, refer to companies which are member of the exchange
in which they trade and agree to abide by its business rules. The basic
functions of futures brokers are: to represent their clients in placing
orders in the market to collect margins from the clients to provide basic
accounting records and transaction to their clients and to advise and to
recommend to their clients for their trading programs. Futures brokers
must execute all orders for trading in futures and options contracts on
the exchange. This means that, besides being licensed under the Futures
Industry Act, a futures broker must be a member of an exchange com-
pany the rules of which he shall abide by.2
1
David Courtney and Eric C. Bettelheim, An Investor Guide to the Commodity
Futures Markets, London, Butterworths, 1986, p. 58.
2
See, Malaysian Futures and Options Examination Guide, Module 1: Regulation, 1997,
pp. 1–22; Low Chee Keong, Securities Regulation In Malaysia Malayan Law Journal Sdh
Bhd, Kuala Lumpur 1997, pp. 178–179.
178 chapter seven
3
Ibid.
4
Ibid.
futures market regulation 179
that sets out the procedures to supervise the types of business which
he engages in, and supervise the activities of officers, employees, agents
and representatives.
In addition, the Business Rules specify that a broker must maintain
internal records of orders received and orders executed for clients which
include client names, account numbers, descriptions of the contracts
entered into, including the underlying instrument, delivery settlement-
month and year, types of order, number of lots and price. In addition,
the type of instructions to trade in contract should be specified whether
it is an order to buy or to sell, including the date and time of receipt,
transmission and execution and the person who received and executed
those instructions. Members must also maintain all records for a period
of 5 years.5
Looking at the role of brokers in the futures market from an Islamic
perspective it could be said that these functions fall under the concept
of samsarah or wakālah bi ʿajr in Islamic law. Thus, almost all modern
principles of brokerage could safely be accommodated in Islamic law
except the issue of brokers borrowing with interest which definitely
must be avoided in any possible Islamic futures market.
Meanwhile, the other regulations governing the industry such as the
financial capability of a broker, his duty not to trade against his client, to
give priority to his customer’s order or to segregate his customer’s fund
are administrative requirements for smooth running of the market and
for the protection of investors and could be easily adopted in Islamic
law under the basis of maṣlaḥ ah.
5
See, Malaysian Futures and Options Examination Study Guide Module 5: COMMEX.
futures market regulation 181
Every futures market exchange has its own rules and regulations although
generally there are some points of similarities. In the present study we
will focus on the regulation of the Malaysian futures market. Until
recently, the regulatory framework of the Malaysian futures and options
market was divided into two segments. One dealing with commodity
futures and the other with financial futures and options. Thus, trading
in commodity futures used to be regulated by the Commodities Trading
Commission, or CTC, a self-regulatory organization established under
the Commodities Trading Act. However, following the amendment of
182 chapter seven
the futures industry Act in April 1997, The Commodities Trading Act
1985 was repealed as well as any subsidiary legislation made or deemed
to have been made under the repealed Act was revoked.6 As a result,
futures and options are regulated by the Securities Commission pursuant
to the Futures industry Act 1993, the futures industry (Amendment)
Act 1995, the Futures Industry (Amendment and Consolidation) Act
1997, the Futures Industry (Amendment) Act 1998.
The Securities Commission was established in March 1993 under
the Securities Industry Act 1993 (SCA). It is a statutory body whose
primary responsibility is the regulation of the Malaysian securities and
futures markets.7
The Securities Commission’s functions which are relevant to the
futures industry include the following:
6
Art 14, sect 1–2 Futures Industry (Amendment and Consolidation) Act 1997.
Also, See Low Chee Keong, Securities Regulation in Malaysia Malaysian Law Journal,
Kuala Lumpur, 1997, p. 5.
7
See, Securities Commission, Malaysian Futures and Options: Regulation Module 1,
p. 26.
futures market regulation 183
market approval, and prosecution while leaving the day to day super-
vision of the market, approval of entry into the industry prudential
control and membership regulatory responsibility to the exchange and
the clearing house.8
The supervisory role of the Securities Commission as well as that
of the exchange and the clearing house to preserve and promote the
integrity of the market and to protect the investors from improper
conduct could easily be accommodated under the principles of the
institution of ḥ isbah in Islam, which has the supervision of the market
as the most important part of its various functions. Ḥ isbah is generally
defined as the institution which promote what is good and forbid what
is improper (wilāyatun taqūmu ʿalā al-ʾamr bi al-maʿ rūf wa al-nahyi
ʿan al-Munkar).9
The institution of ḥ isbah was a shining example and direct reflection
of the development of Islamic civilisation throughout the centuries
when Islamic principles were observed and implemented by Muslims.
It developed from a small institution concerned with the supervision of
the market to an institution comprising various departments and dealing
with almost everything that affects the life of the Muslim community
ranging from economics, workers’ rights, medicine, security, city plan-
ning, animal care, the environment and the welfare of students. In all
these areas the muḥ tasib was performing his duty with justice, patience,
and care without jeopardizing the personal privacy of the individual.10
The Prophet frequently undertook inspections of the market to check
on the application of the economic principles of the sharīʿah from
engaging in improper behaviors, and thus he may be described as the
first muḥ tasib in Muslim history. During of his inspection, as reported
in a widely known tradition: “the Messenger of God (peace be upon
him) approached a stack of food (i.e., wheat) and inserted his hand,
his fingers reached something moist. What is this, food merchant? The
Prophet asked. The merchant answered: It has been affected by rain,
Messenger of God. Then the Messenger of God asked: why not put the
8
Ibid., pp. 26–27.
9
Al-Māwardī, al-Aḥ kām al-Sultāniyyah wa al-Wilāyāt al-Diniyyah, Dār al-Fikr, 1983,
p. 207; Ibn Taymiyyah al-Ḥ isbah fi-al Islām, al-Madīanh al-Munawwarah, al-Jāmiah
al-Islāmiyyah, n.d., p. 91.
10
Al-Māwardī, al-Aḥ kām al-Sultāniyyah wa al-Wilāyāt al-Diniyyah, Dār al-Fikr,
1983, p. 207; Ibn Khaldūn al-Muqaddimah, (ʿAli Abd al-Wāḥid edition), Dār al-Fikr,
Cairo, 1960, p. 576; Ṣubḥī ʿAbd al-Munʿim, al-Ḥ isbah fi al-Islām bayn al-Nazariyyah
wa al-Ṭatbīq, Dār Riyāḍ al-Ṣāliḥīn, Cairo 1994, pp. 14–24.
184 chapter seven
moist part on the top of the stack so that people can see it? And he
added: “He who cheat us is not from us”.11 Permanent staffs were also
appointed as muḥ tasib during the time of Prophet. These include Sa‘īd
ibn al-ʿĀṣ, ʿAbd Allāh ibn Saʿīd ibn al-ʿĀṣ, ʿUmar ibn al-Kaṭṭāb, Samrah
al-Asadiyyah and al-Shifāʾ bintu ʿAbd Allāh.12
The present study is concerned about the role of the muḥ tasib in
market’s supervision. The sharīʿah sets out economic standards and
rules that Muslim should follow. Thus, the muḥ tasib regulated the
market activities in a number of ways. Cited bellow are some of the
important ways:
• First, the muḥ tasib would see that resources did not flow to the pro-
duction and distribution of goods and services which are categorically
ḥ arām in the Sharīʾah.
• Second, he would keep a strict watch on the supply position of essen-
tial articles especially foodstuff. At times of shortage he could compel
the hoarders to bring out their stock to the market (iḥ tikār).
• Third, all trade had to be done in the open market. Secret dealings
by the traders at their homes, warehouses and behind closed doors
could disturb the supply flows and thus interfere in the establishment
of a natural price level.
• Fourth, the trades were not allowed to collude to bid up prices arti-
ficially (najash). This clearly indicates a necessity for anti-monopoly
measures by the present day state.
• Fifth, the traders were not allowed to form groups to push newcom-
ers out of the market. Free access to market was ensured to anyone
who wanted to enter the market.
• Sixth, the urban traders were not allowed to meet the rural suppli-
ers on their way and to buy their products at cheaper rates, keep-
ing them in darkness about the market condition because such an
exercise provides undue profit margins to the economically power-
ful sections at the cost of the unaware villagers (talaqqī al-rukbān).
Moreover, this could lead to cut-throat competition between urban
merchants to reach the rural suppliers on their way and thus lead to
an unhealthy competition. It suggests that the muḥ tasib would have
11
Muslim, Ṣaḥ iḥ Muslim, Kitāb al-Īmān, ḥadīth no. 164.
12
See, Ibn Ukhuwwah, Muḥammad Ibn Muḥammad, Maʿālim al-Qurbah fi ʾaḥkām
al-Ḥ isbah, Maktabat Wahbah, Cairo, 1976, p. 38; Ibn Ḥ ajar, al-Iṣābah fi Marifat
al-Ṣaḥ ābah, Cairo, vol. 2, p. 47.
futures market regulation 185
13
See, Al-Māwardī, al-Aḥ kām al-Sultāniyyah wa al-Wilāyāt al-Diniyyah, pp. 207–210;
Ibn Taymiyyah al-Ḥ isbah fi-al-Islām, pp. 91–99; Ibn Ukhuwwah, Muḥammad Ibn
186 chapter seven
Muḥammad, Maʿālim al-Qurbah fi Aḥkām al-Ḥ isbah pp. 45–67 Muhammad Akram
Khān, “al-Ḥ isbah and the Islamic Economy” in Pubic Duties in Islam, the translation
of the Ḥ isbah by ibn Taymiyyah, translated from the Arabic by Mukhtar Holland,
the Islamic Foundation 1982, pp. 135–151; Cengiz Kallek, “Socio-Politico Economic
Sovereignty and the Market of Medina”, Journal of Islamic Economics, vol. 4, Issue 1&2
July 1995, pp. 1–14.
futures market regulation 187
(a) Employ any device, scheme or artifice to defraud that other person;
(b) Engage in any act, practice or course of business which operates as
a fraud or deception, of that other person; or
14
See David Courtney & Eric C. Bettelhim, An Investor Guide to the Commodity
Futures Markets Butterworths, London, 1986, p. 44.
188 chapter seven
(c) Make any false statement of a material fact, or omit to state a mate-
rial fact necessary in order to make the statement made, in the light
of the circumstances in which they where made, not misleading.
The above provisions are all acceptable and could easily be accommo-
dated in Islamic law given the fact that the attributes of truthfulness,
honesty, justice and righteousness are precisely what Islam requires
every Muslim to observe in all aspects of his life. It is not only required
for legal purposes but also moral and spiritual ones. Thus, dishonesty,
injustice and fraud are regarded as moral wrongs which in addition to
temporal punishment, if any, will be counted as sins and hence, subject
to God’s punishment in the hereafter.
A truthful and trustworthy trader is not only credited in this world as
having good standing and reputation among other traders and potential
customers, but also from the religious point of view, he will be placed
with the Prophets, the righteous and the martyrs in the hereafter.
There are many sayings of the Prophet (PBUH) on this point. He said:
“A trustworthy, honest and truthful businessman will rise up with the
martyrs on the day of resurrection”.15 It is also reported that the Prophet
15
See, Fatḥ al-Bārī, Dār al-Maʿrifah, Beirut, vol. 3, p. 144.
futures market regulation 189
(PBUH) said: “The two parties to a sale have the option to rescind the
contract as long as they have not separated from each other. If both of
them are truthful and honest they will be blessed in their sale but if
they are secretive and liars, then the blessing of their sale will perish”.16
Moreover, these principles are not only required when a Muslim is
dealing with his fellow Muslims but also with non-Muslims.
The above mentioned crimes such as manipulation, fraud, misuse of
information or destruction of information could generally be accommo-
dated under the concept of fraud ( ghish), manipulation, (najash) or other
similar concepts such as buyʿ al-mustarsil, talaqqī al-rukbān and the case
of taṣriyah. Therefore, we will briefly describe these principles.
Najash for instance, refers to a person or institution which only par-
ticipates in a sale by false bidding where an auctioneer has appointed
one or several bidders to take part in bidding, in order to incite the
others to make higher bids exceeding the real value of an article. In
other words, it is when a person (al-nājish) is acting in collusion with
one of the contracting parties in order to raise the price. The prospec-
tive buyer might have thought that his highest bid was the reasonable
value of the article, while, in fact it was not the case. The false bidder’s
agents bidding up the price to incite him to put in another bid, which is
higher, had deceived him and the contract has then been concluded at
that higher price.17 There is no doubt that the auctioneer’s agents were
not genuine traders. They just aim to deceive the real traders about the
real price. This is regarded as a fraudulent statement.
Many aḥ adīth have been reported from the Prophet (PBUH) in
which he has prohibited najash. Thus, it is reported by Ibn ʿUmar that
the Prophet (PBUH) had forbidden al-najash.18 Since there is no clear
law on the effect of najash, neither in the Qurʾān nor in the Sunnah,
different views are held by Muslim scholars. They are all in agreement
that a person who practices najash is committing a sin and he is mor-
ally blamed. However, there is a difference of opinion regarding the
effect of najash on the contract as to whether it will be considered
void or valid.
Another contract which could be a basis for the above provision in
the Futures Industry Act is the contract of mustarsil. It is a contract of
an easy-going customer who does not bargain and who is ignorant about
16
See, Saḥ iḥ Muslim, vol. 4, p. 123.
17
Mohammad ʿAli Bahrum, Misrepresentation: Study of English and Islamic Contract
Law, al-Rahmaniyyah Islamic Mission, Kuala-Lumpur, 1988, p. 156.
18
Saḥ īḥ Muslim with al-Nawawi, Dār ʾIḥyā al-Turāth al-ʿArabi, vol. 2 p. 108.
190 chapter seven
the market price. However, he trusts what the sellers say about the real
value of a particular article.19 The parties involved in the contract have
a fiduciary relationship in which the seller is entrusted with the buyer’s
confidence that he will tell the truth or reveal those facts which he is
acquainted with. It normally happens when the buyer openly reveals to
the seller to sell it at the market price. Upon having such a trust placed
in him the seller is required by law to disclose the true value of the
article and sell it at the market price. Any given price higher than the
normal price would be regarded as fraud.
Fraud is one of the broad Islamic equitable concepts against decep-
tion. This concept is supported by numerous aḥ adīth. In one of these
aḥ adīth the Prophet (PBUH) said: “One who cheats us is not from us”.20
The elements of fraud, as summarized by al-Sanhurī, are exploitation
by means of trickery and the inducement of the contracting party into
the contract.
Finally, the FIA states that any person who contravenes or fails to
comply with any of the provisions of this Part shall be guilty of an offence
and shall be liable on conviction to a fine not exceeding one million ring-
git or to imprisonment for a term not exceeding ten years or both. This
kind of penalty imposed in such offences, from the Islamic perspective
falls under tʿazīr (discretionary punishment). The authorities have full
discretion to impose a suitable penalty based on public interest.
Besides the above measures, the integrity of the market is maintained
through other means as well. Thus, to prevent extreme price change in
one day, most futures exchanges limit the amount of daily movement
of futures prices. This “daily limit” restricts the amount of movement
of price above or below the settlement price of the previous day. For
instance, regarding crude palm oil futures the daily price limit is RM
100 per metric ton above or below the Settlement Prices of the preced-
ing day for all months, except the current month. Limits are expanded
when the Settlement Prices of all three quoted months immediately
following the current month. The daily price limits will remain at RM
200 when the preceding day’s settlement prices of all three quoted
months immediately following the current month settle at a limit of
RM200. It should be noted that a market does not close because a daily
19
Mohammad Ali Bahrum, Misrepresentation: Study of English and Islamic Contract
Law, 126.
20
Ṣaḥ īḥ Muslim, Dār al-Fikr vol. 3, p. 1155.
futures market regulation 191
price is reached; it merely cannot trade past that point. Any amount
of trading can take place at the limit if a trader is willing to take the
opposite side, or of course a price can move down from limit up or up
from limit down.
Moreover, in order to ensure the stability of the market price is not
allowed to fluctuate more than RM 1.00 per metric ton. In addition, the
integrity of the market is protected from excessive speculation through
the speculative position limit where transactions are limited to 500
contracts net long or net short for any delivery month or all delivery
months combined. This is also emphasized by the system of reportable
position, which is limited to 100 or more open contracts, either long or
short, in any one-delivery month. Moreover, a transaction limit where
each single floor transaction shall not exceed 20 lots.
The above regulations helped a great deal in preserving the integrity
and reliability of futures market. However, the futures contracts them-
selves fall short of overcoming the ever-increasing business needs for
more sophisticated instruments of risk management. Thus, the options
contracts were introduced due to their ability to address such need. This
will be discussed next.
THE OPTIONS MARKET
CHAPTER EIGHT
Concept of Options
1
See, Obiyathulla Ismath Bacha, “Derivatives Instrument And Islamic Finance: Some
Thoughts for Reconsideration”, p. 6.
196 chapter eight
Thus, options are needed due to their potential to manage such risks
in a better manner.
Definition
“An option is a contract between two parties in which one party (the
buyer) has the right, but not the obligation, to buy or sell a specified
asset at a specified price, at or before a specified date, from the other
party (the seller). The seller of the option, therefore, has a contingent
liability or an obligation, which is activated if the buyer exercises that
right”. Thus, “An option contract conveys the right to buy or sell an
underlying commodity at a specified price within a specified period
of time”.2
“The important feature is that the buyer of the option is not obliged
to complete the deal, and will do so only if changes in price make it
profitable for him. The buyer of the option is protected from unfavor-
able market movements, yet he is able to profit from movement in the
buyer’s favor. The risk of loss is carried by the seller, who charges the
buyer fee for taking this risk. This fee is called the premium”.3 A simple
example may clarify the above definition. Suppose it is early Septem-
ber and you want to buy a new car. You select the type of the car you
want and go to your local dealer. In the dealer’s showroom you decide
on the exact specification of your car’s colour, engine, size, wheel trim
etc. The car is on offer at £20,000 but you must buy the car today. You
do not have that amount of cash available and it will take a week to
manage a loan. You offer the dealer £100 if he will just keep the car
for a week and hold the price. At the end of the week the £100 is his
whether or not you buy the car. This is a tempting offer and the dealer
accepts your offer. You have entered into an option contract in this case.
It is termed as a call option. This means, you have the right to buy the
car in a week but not the obligation. If during the week you discover
a second dealer offering an identical model for £19,500, you will not
take up your option with the first dealer. The total cost of buying the
car is £19,500 + £100 = £19,600, which is cheaper than the first price
2
Hans R. Stoll & Robert E. Whaley, Futures and Options Theory and Applications,
South-Western Publishing Co., Ohio, 1993, p. 6.
3
Securities Commission and Securities Institutes Education, Malaysian Futures and
Options Registered Representatives (MFORR) course, Kuala Lumpur, 1997, p. 2.
concept and scope of the options market 197
you were offered. However, if you find the car at a cheaper price from
the second dealer, for instance, and buy the car from the first dealer,
the car will cost a total of £20,100. If you decide not to buy at all, you
will lose your £100 to the car dealer. Thus, you are hedging against a
price rise in the car.
On the other hand, if the car you have bought a call option for is great
in demand and there is a sudden price rise to £22,000 and a friend of
yours also wants the same car and hears that you have an option to buy
the car for £20,000 in a week time, after visiting the bank you decide
that you cannot really afford to buy the car and therefore, you sell the
option to buy to your friend for £200. This means the car dealer still
gets his sale, your friend gets the car he wants and you make £100 on
selling your option.4
A somehow more complicated example from the energy market may
guide us to the practical use of options given the fact that the energy
market is one of the markets where the use of options is growing very
rapidly. An oil producer fears an oil price decline, due to hot summer
weather. He is worried he may have to sell his oil too cheaply in the
market. He anticipates that he will sell approximately 1,000 barrels a day
in October at a price of about U$20 per barrel. His expected receipts on
25 days of production are US$500,000. The producer could use futures
that would cost nothing in terms of upfront premium, but could actually
lose him money if his view of the market is wrong. However, there are
certain factors in the market that lead him to believe that there may be
a short term market shortage that may well push up prices temporarily.
He wishes to profit, in case of favorable move of the market, while sav-
ing himself from downside. In order to get an indication prices-trading
situation, he puts up Dow Jones Telerate screens for NYMEX futures
and options.
The current level of the November future is US$17.49 per barrel. The
producer decides to buy 25 put options on the NYMEX Light, Sweet
Crude oil futures with a strike at US$17.50 per barrel. This is slightly
“in the money” (an option with a strike price more advantageous than
the current market level of the underlying) and the cost will reflect
this. The Dow Jones Telerate shows that the last trade went through
at 26 cents per barrel against yesterday’s close at 29 cents. Volatility is
4
See, The Reuters Financial Training Series, Introduction to Derivatives, 1999, John
Wiley & Sons (Asia) Singapore, pp. 10–11.
198 chapter eight
bringing market down, and our oil producer decides to deal through
his broker at 26 cents per barrel. A total premium cost of US$0.26 ×
25,000 barrels, this is US$6,500.
There are two possible outcomes in the next month. Oil prices can rise
or they can fall. Let us assume that the oil price can move +– US$4.00.
First of all, if oil prices rise to US$21.50 the producer will abandon his
option and sell his oil at a higher level. This would benefit him 25,000x
US$1.50 which is equal to US$537,500, a gain of US$7,500 over his
original estimate. But his option premium cost him US$6,500, which
must be deducted to give the final figure of US$531,000, equivalent to
US$21.24 per barrel. Secondly, if oil prices had fallen, to say US$13.50,
from their original level, he would have exercised the option to sell his oil
at US$17.50, netting an income of US$431,000 after premium costs.5
5
See, Francesca Taylor, Mastering Derivatives Markets A Step-by Step Guide to the
Product, Application and Risk, Financial Times Pitman Publishing, London, 1996, pp.
242–243.
concept and scope of the options market 199
In another place El-Gārī stressed that: “there are many legitimate and
Islamically desirable uses of options in stock markets. In particular,
the hedging aspect of options is quite in line with the recognized need
of individuals, which is not contradictory to the sharīʿah. The fact
remains however, that an option contract should not have an existence
independent of sale or lease contract”.7 Moreover, he maintained that
while there is, obviously, plenty of room for speculators in put options
6
See, El-Gārī, “Towards an Islamic Stock Market” Islamic Economic Studies, vol. 1,
no. 1, December 1993, p. 12.
7
El-Gārī, “Stock Exchange Transactions: Sharīʿah Viewpoint”, Encyclopaedia of
Islamic Banking, p. 170.
200 chapter eight
8
Ibid., p. 170.
9
See, El-Gārī, “Towards an Islamic Stock Market”, p. 13.
10
Fuad al-Omar & Mohammed ʿAbdel-Ḥ aq, Islamic Banking Theory Practices and
Challenges, Oxford University Press, 1996, pp. 92–93.
11
Obiyathulla Ismath Bacha, “Derivatives Instrument And Islamic Finance: Some
Thoughts for Reconsideration”, pp. 1–2.
12
Mohammad Obaidullah, “Islamic Options-Engineering Risk Management Solu-
tions”, New Horizon, May, 1998, p. 6.
concept and scope of the options market 201
13
Islamic Finance. Net. “Islamic Financial Derivatives” (discussion forum) Interna-
tional Journal of Islamic Finance and Services, vol. 1, no. 1, April–June 1999, p. 9.
14
Mohammad Mukhtār al-Salāmī, “al-Ikhtiyārāt” Majallat Majmaʿ al-Fiqh al-Islāmī,
1992, no. 7, vol. 1, p. 241; Siddīq al-Ḍ arīr, “al-Ikhtiyārāt” Majallat Majmaʿ al-Fiqh
al-Isālmī, 1992, no. 7, vol. 1, p. 271.
202 chapter eight
Limited Risk
Buyers of options have limited risk because they can lose no more than
the option premium. Holders of futures positions are required to pay
up losses (in the form of margin as the market moves against them).
These losses are theoretically unlimited. They will keep growing as
the market continues to move unfavorably until the futures contract
is closed out. Limited risk has also benefits to hedgers who desire to
manage their risk. For them the option performs the function of set-
ting either a maximum buying price or minimum selling price for a
future transaction without locking in this price. If the physical market
price is better at the time the transaction takes place, the hedger can
take full advantage of it. Option sellers or writers do not have limited
risk. Their risk position is more like that of the holder of an ordinary
futures contract; but the seller of an option also earns the premium.
Premiums earned by options sellers can be a useful source of income
especially for those who deal in the underlying commodity and wish
to increase their potential investment yield. For such users, holding
the underlying physical commodity reduces the level of risk involved
in selling options.16
15
Hans R. Stoll & Robert E. Whaley, Futures and Options Theory and Applications,
pp. 11–12.
16
Securities Commission and Securities Institutes Education, Malaysian Futures and
Options Registered Representatives (MFORR) course, p. 15.
concept and scope of the options market 203
There are two fundamental kinds of options: the American option and
the European option. An American option permits the owner to exercise
at any time before or at the expiration. The owner of a European option
can exercise only at the expiration. Thus the two options differ because
the American option permits early exercise. If the option is at expira-
tion, European and American options will have the same value. They
can be exercised immediately or be allowed to expire worthless. Prior
to expiration, we will see that the two options are conceptually distinct.
Further, they may have different values under certain circumstances.
Consider any two options that are just alike, except that one is
American and the other is a European option. By saying that the two
options are just alike, we mean they have the same underlying commod-
ity or stock and the same exercise price. The American option gives its
owner all rights and privileges that the owner of the European option
possesses. However, the owner of the American option has also the
right to exercise the option before expiration if he desires. From these
considerations, we can see that the American option must be worth at
least as much as the European option.
17
See, Robert W. Kolb, Option The Investor’s Complete Toolkit, New York Institute
of Finance, United States, 1991, p. 7.
204 chapter eight
Types of Options
There are many types of options, such as, exotic options, compound
options, options on options, lookback options and others. However, the
present study is only concerned with the fundamental types of options
namely, call and put options. A call option gives the holder the right to
buy an asset within a specific period at certain price. A put option, on
the other hand, gives the holder the right to sell an asset by a certain
date at a certain price. The date specified in the contract is known as
the expiration date, the exercise date, the strike date, or the maturity
date. The price specified in the contract is known as the exercise price
or strike price. The following examples illustrate the above two funda-
mental concepts.
18
Robert Kolb, Understanding Options, John Wiley and Sons, Inc., New York, 1995,
pp. 5–6.
concept and scope of the options market 205
price is 65 cents on this date, the investor can buy 100 shares for 65
cent per share and, under the term of put option, sell the same shares
for 90 cents to realise a gain of 25 cents per share or 2500 cents. Again,
transaction costs are ignored. When the 700-cents paid premium for
the option is taken into account, the investor’s net profit is 1800 cents.
Of course, there is no guarantee that the investor will make a gain. If
the final stock price is above 90 cents, the put option expires worthless
and the investor loses 700 cents.
Although the present study is generally based on the assumption that the
Islamic alternative for option trading will be exchange-traded options,
the possibility of an Over The Counter Islamic options is not totally
ruled out. More importantly, it is highly likely that it will precede the
organized market, because over-the-counter markets generally precede
organized exchange markets in futures and options. Thus, in the United
States where the derivatives market developed prior to the inception of
the Chicago Board Options Exchange in 1973, over-the-counter options
on common stocks were arranged by put and call dealers. Moreover, in
over-the-counter market delivery is usually implied. Therefore, given the
fact that the issue of delivery is one of the points of criticisms against
options in general from some Muslim scholars, a start with an over-
the-counter market from Islamic perspective may help in highlighting
the benefits of options in general and paving the way for the organ-
ized market. In addition, it should be noted that the growth in the
organized market in the conventional system does not mean that over-
the-counter market has declined in importance.
In recent years, over-the-counter market trading in derivative financial
instruments has grown dramatically alongside organized markets in
these instruments. This reflects the fact that over-the-counter forward
and option contracts can be tailored to the needs of their retail custom-
ers. Institutions create over-the-counter forward or options contracts to
offset their over-the-counter market positions.19 Thus, the main features
of the two concepts need to be underlined briefly.
19
See, Hans R. Stoll & Robert E. Whaley, Futures and Options Theory and Applica-
tions, p. 15.
concept and scope of the options market 207
Exchange traded options are options that originated and are traded on
formalised and government designated exchanges. In exchange markets,
contracts are standarized and the clearinghouse is the buyer to every
seller of a contract and the seller to every buyer. This eliminates default
risk of option buyers, or the risk of failure of the seller to meet his or
her obligations. Moreover, the standardization process makes it easy for
market participants to deal in these instruments because no discussions
or negotiations are needed to determine the contract specifications. The
only item for negotiation is the price.
Under this arrangement, secondary market trading is possible because
a buyer of a contract, who wishes to liquidate his position, does not
need to search and find the original seller of the contract instead he
may negotiate a transaction with any individual. In over-the-counter
markets, in contrast, contracts are tailored to the needs of the transacting
parties, and no clearinghouse exists. It is a contract between two par-
ties who make their own arrangements for guaranteeing the contract’s
financial integrity. Secondary market trading is very inefficient in the
over-the-counter markets because a buyer, who wishes to liquidate his
position, is obliged to seek an agreement with the original seller of the
contract.20
Market players have used options on commodities and stock for several
centuries. During the Dutch Tulipomania events of 1630s, tulip dealers
granted growers the right to sell their tulip bulb crop for a set minimum
price. For this privilege, the grower paid the dealer a fee. Tulip dealers
paid a fee to the growers also for the right to buy the bulb crop at an
agreed maximum price.
By the early 1820s, the London Stock Exchange was trading options
on shares, and in the 1860s, there were over-the-counter options markets
on both commodities and stocks in the US. The early exchange traded
and over-the-counter options markets were not free from problems such
as lack of regulation, contract default etc. The market got a bad name
20
See, Franklin R. Edwards & Cindy W. Ma, Futures and Options, McGraw-Hill, Inc.,
United States, p. 491; Hans R. Stoll & Robert E. Whaley, Futures and Options Theory
and Applications, pp. 14–15.
208 chapter eight
Scope of Options
21
The Reuters Financial Training Series, Introduction to Derivatives, p. 71, John Hull,
Introduction to Futures and Options Market, Prentice Hall, Inc., 1991, p. 5; Franklin R.
Edwards & Cindy W. Ma, Futures and Options, p. 488.
concept and scope of the options market 209
sharīʿah is not permissible even for charitable purposes, let alone profit
making.22
Currency options is another area, which could not be admitted in Islamic
finance. Some very authentic aḥ adīth are clear that currency exchange
must be hand-to-hand and any postponement to the future is illegal
while the idea of an option, in contrast, is based on future expectations.
Therefore, there is no room for compromise and the rules of the sunnah
must prevail. Some writers have suggested the possibility of options in
currency trading based on the opinion of early scholars. According to
them it is possible to trade fulūs on a in future basis because fulūs were
not genuine currency at that time but gold and silver. Thus, Obaidullah,
for instance, says,
currency options pose some challenges for scholars and researchers and
there are divergent views on the issue of the prohibition of ribā in currency
exchange. The divergence is due to the process of analogy (qiyās) in which
efficient cause (ʿillah) plays an extremely important role. The process of
analogy is needed since gold and silver, which performed the function of
money in the early days of Islam, have been replaced by paper currencies.
It is a common efficient cause (ʿillah) which connects the object of the
analogy with its subject in the exercise of analogical reasoning. The appro-
priate efficient cause (ʿillah) in the case of currency exchange contracts has
been variously defined by the major schools of fiqh. Accordingly, jurists
equate currency exchange with bayʿ al-ṣarf in which spot settlement or
qabḍ by both the parties on the spot is insisted upon. Hence, options are
automatically ruled out. Some others, primarily belonging to the Ḥ anafī
school permit deferment of obligation by one party or bayʿ al-salam in
currencies and thus admit the possibility of options.23
However, as it was discussed earlier in this study, the Ḥ anafī opinion to
which Obaidullah is referring to, is based on the ground of an analogy
between fulūs and modern paper money. However, there exists discrep-
ancy in this. Paper money is the only medium of exchange nowadays
similar to gold and silver in the early days of Islam while fulūs when
introduced were only a medium of exchange for less valuable items,
while gold and silver were the major medium of exchange. Moreover,
the idea of allowing deferred trading in fulūs is keenly contested even by
the early jurists and the opinion, which fulfills the spirit of the sharīʿah
22
El-Gārī, “Stock Exchange Transactions: sharīʿah Viewpoint”, Encyclopaedia of
Islamic Banking, p. 170.
23
Mohammad Obaidullah, “Ethical Options in Islamic Finance”, p. 79.
210 chapter eight
and its objectives goes that deferred trading in fulūs is illegal. Thus, there
is no possibility of currency option in Islamic finance and the scope of
this study will be limited to options in commodities and shares.
Thus, addressing options contracts from an Islamic point of view
means, first of all, assessing the compatibility of these contracts with the
sharīʿah and identifying the points of difference with Islamic principles.
Secondly, looking for the Islamic alternative, among the existing types
of contracts that could produce the same benefits without contraven-
ing the principles of Islamic commercial law. However, if the existing
Islamic types of contracts fail to provide the same benefits provided by
the conventional options, is it possible to modify the conventional aspect
of options so that it could comply with Islamic principles? However, if
this step is not suitable, is it possible to extend the concept of some of
the existing Islamic types of contracts within the framework of Islamic
principles and based on the theory of freedom of contract and condi-
tions in order to accommodate the already acknowledged benefits of
conventional options?
Another issue that has been repeatedly raised in the prohibition of
options is the claim that conventional options are pure gambling, which
has no place in Islamic Finance. It should be noted that the concept of
gambling and gharar are, sometime, confused to each other. Moreover,
the claim of gambling in modern transactions is not limited to options.
Similar claim was also made against the stock market transactions
considered by some scholars as merely gambling which does not serve
any useful economic purpose.24
24
See, Mohammed Ali El-Gārī, “Towards an Islamic Stock Market”, p. 8.
25
The Encyclopedia Americana, International Edition, Grolier Incorporated 2001.
concept and scope of the options market 211
26
[1989] 1 HKLR, 476.
27
See, Paul Latimer, “Futures Contracts and Gaming Laws”, The Company Lawyer
International, Australia, vol. 14, no. 3, pp. 67–71.
212 chapter eight
28
Majallat Majmaʿ al-Fiqh al-Islāmī, 1990, vol. 1, p. 568.
29
Ibid., p. 572.
concept and scope of the options market 213
30
Ibid., pp. 576–577.
31
Ibid., p. 582.
32
Ibid., p. 584.
33
Ibid., p. 589.
214 chapter eight
legally accepted sale and leasing contracts too. Do we conclude that these
contracts are illegal. In fact, risk is present in every contract of sale and
a person could lose or gain from this or that contract. Do we conclude
that these contract are illegal?34
Intervening in this juridical debate some Muslim economists made
some clarifications. Thus, Sāmī Ḥ ammoud says, “to say that this con-
tract is similar to gambling is not true. It is not a gambling contract in
the eyes of one who is expert in the field”.35 Lastly, Mundhir Khaf and
ʿAbd al-Salām al-ʿAbādī describes the options contract pointing to the
difference between options in commodities and stocks on one hand
and that of currencies and especially stock indices on the other. More
importantly, underlining the fact in option trading, there is an exchange
of a right with money, which is not definitely the case in gambling.36
Although the right position seems to be clear from the above expo-
sition of the different views, however, a brief comment is necessary to
point out the implications of some of the above statements to the study
of Islamic finance and specially that of options, commodities and stocks.
First of all, although the opponents of options have realised a genuine
difference between option in commodities and stocks on one hand, and
that of currency and stocks indices on the other, they have not made
any attempt to evaluate the two cases differently which resulted in a
total confusion and generalization.
Secondly, they have drawn an analogy between options and insurance
to invalidate options. However, although Muslim jurists have opposed
the conventional form of insurance, a continuous effort to formulate the
Islamic alternative was the objective of these jurists since then. Unfor-
tunately, this was not the case with options where many have claimed
that there is no need for such contracts for the Muslim economy and
therefore, there is no need for an Islamic alternative.
Thirdly, al-Ḍ arīr argued that he opted for the opinion that trading
in stocks companies is illegal if the traders are looking for profit from
price differentials and not the ownership of the of the stocks. However,
if such an opinion is considered, it will not only prohibit commodity
and stock trading either with options or without it. Besides, it will lead
34
Ibid., p. 590.
35
Ibid., p. 593.
36
Ibid., pp. 595–598; pp. 603–605.
concept and scope of the options market 215
gain through prices differential and not the real ownership of the of
the stocks. And if this is the ground to invalidate options then, khiyār
al-sharṭ, ʿarbūn or trading in stock companies, as practiced nowadays
by Islamic financial institutions, should be declared illegal.
Some other scholars on the other hand, did not see even speculation
as gambling if it is based on information and not on manipulation and
distortion of the market. In other words, a limited kind of speculation
is an ordinary market practice and could not be equated to gambling.
Thus, Ahmad Abdel Fattah El-Askar says:
Speculation has mistakenly been equated with gambling. This need not
be the case. Speculation involves a great deal of computation, which in
the light of the highly developed computation techniques of today can
hardly be a game of chance. It is a process that relies on the analysis of a
lot of economic and financial data, companies financial reports, political
decisions, information about management skills and aptitude as well as
the personal profile of decision makers. All this information is analyzed
before a decision of buying and selling securities that requires a great
deal of knowledge and skills. But the notion of equating speculation
with gambling is a misconception that is inherited from the past when
speculation was more of a personal guess than a very careful calcula-
tion. Nor can the stock exchange be equated with gambling casinos. It is
a complete market in which very little, if ever, is left to chance. Neither
can the market afford a mere chance in its operations nor can countries’
economies sustain it.37
Similarly, commenting on the issue of gambling on options, Obaiyathul-
lah maintained that the argument profits from options are “unearned”
is an invalid argument. It ignores the fact that both the buyer and seller
take on risk and that the buyer has at stake the premium he has paid.
Furthermore, the change on an option’s value arises from changes in
the underlying asset value and not by chance. If such gain is unearned,
then it implies that all capital gain income could also be considered
unearned. The second argument that options involve gharar since there
is potential for default totally ignores the fact that Exchanges place
margin requirements on sellers of options precisely to prevent default.
Notes that buyers of options would by definition not default because
37
Ahmad Abdel Fattah El-Ashkar, “Toward An Islamic Stock Exchange in a Transi-
tional Stage”, Islamic Economic Studies, vol. 3, no. 1, December 1995, pp. 82–83.
concept and scope of the options market 217
their maximum possible losses is the premium, all of which is fully paid
for at the time of purchase.38
In addition, Abū Ghudah as Sharīʿah adviser of one of the leading
Islamic financial institution, namely Dallah al-Barakah Group main-
tained that looking for price differential by buying some beneficial assets,
then selling them before getting their associated profit or after that, is a
legitimate and legal objective; because it is a trade aiming at selling what
one has bought at higher price. However, some contemporary Muslim
jurists, as Abū Ghudah notes, are of the opinion that buying and selling
shares with the intention of getting the price differential is a kind of
transaction on currencies, given the short period between the sale and
purchase offers, and there is no value added from such a transaction
except the objective of looking for price differential. Such an argument,
as Abū Ghudah argues, ignores the nature of a share, which is part of
whole asset of the company, which shall be sold at higher price than
the price of purchase.
In fact, trading shares with the objective of getting price differential
is not without benefits. It helps in stimulating the economic activities
whether it is a bilateral or a collective transaction. However, these ben-
efits could not be appreciated unless we look into the different activities,
preceding or following the purchase. Thus, the price given by the buyer
of these shares allows the seller to embark in new forms of commer-
cial activities such buying shares from another companies and in turn,
creating liquidity in the market, which will benefit the participants in
the market in different forms. If this liquidity is impossible in a market,
investors may not have taken the risk of locking their money in the
shares of these companies. Thus, investors are free to go in or out at
any time and, each move has its causes and objectives. This is similar
to what is reported from the prophet to have said: “let people benefit
from each other”.39
The fear from the harm which will be created by this rapid form of
transaction or the problems that had happened in certain countries,
under certain circumstances were the result of negligence of the sharīʿah
regulation in shares trading. Companies are trading in futures while they
are still in the stage of formation just after the collection of money for
38
See, Obiyathulla Ismath Bacha, “Derivatives Instrument And Islamic Finance:
Some Thoughts for Reconsideration”, p. 14.
39
Ṣaḥ īḥ Al-Bukhāri with Fatḥ al-Bārī, vol. 4, p. 372.
218 chapter eight
40
For more detail see, ʿAbd al-Sattār Abū Ghuddah, “al-Istithmār fi al-Ashum wa
al-Wihdāt al-Istithmāriyyah”, Majallat Majmaʿ al-Fiqh al-Islāmī, pp. 112–115.
41
See for instance, Majallat Majmaʿ al-Fiqh al-Islāmī, no. 7, vol. 1, p. 650.
concept and scope of the options market 219
42
See for instance, Majallat Majmaʿ al-Fiqh al-Islāmī, no. 9, vol. 2, p. 163.
43
See, Majallat Majmaʿ al-Fiqh al-Islāmī, no. 9, vol. 2, p. 334.
220 chapter eight
different arguments against the sale of a pure right. Thus, the issue of
a right as a property needs a detailed investigation.
An investigation about options from an Islamic point of view would
not be complete unless the issue of gambling in options and the claim
that options trading is illegal because it involves the combination of two
contracts in one transaction is tackled. Thus, in the following pages the
present study elaborates on these issues and assesses the possibility of
options trading in Islamic law and finance.
CHAPTER NINE
1
Islamic Commercial Law: An Analysis of Futures and Options (unpublished Manu-
script), Law Center International Islamic University.
2
“Raiʾ al-Tashrīʾ al-Islāmī fi Masāʾil al-Burṣa h”, al-Mawsūaʿ al-ʿIlmiyyah wa
al-ʿAmaliyyah lil bunūk al-Islāmiyyah, Cairo, al-Ittihād al-Dawlī lil-Bunūk al-Islāmiyyah,
1982, vol. 5, pp. 428–445.
3
Taʾqīb ʿalā Raiʾ al-Tashrīʾ al-Islāmī fi Masāʾil al-Burṣah”, al-Mawsūaʿ al-Ilmiyyah
wa al-ʿAmaliyyah li a-bunūk al-Islāmiyyah, Cairo, al-Ittihād al-Dawlī lil-Bunūk
al-Islāmiyyah, 1982, vol. 5, pp. 438–443.
4
Muʿāmalāt al-Burṣah fi al-sharīʿah al-Islāmiyyah, Cairo, Dār al-Nahdah, 1988.
5
“Financial Engineering with Islamic Options”, Islamic Economic Studies, vol. 6, no. 1,
November 1998, pp. 73–103.
6
See Abū Ghuddah, al-Khiyār waʾAtharuhu fi al-ʿUqūd, Dallah al-Barakah, Jeddah,
n.d.
KHIYĀR AL-SHARṬ , risk management and options 223
some scholars before, the introduction of the option of paying the price
or khiyār al-naqd will add a new dimension to the possibility of risk
management through the theory of khiyārāt in Islamic law. Hence, we
discuss the legal aspect of these contracts and the possibility of using
them as an alternative to the conventional options.
7
Ibid., p. 194.
8
ʿAbd al-Raḥmān al-Jizarī, al-Fiqh ʿalā al-Madhāhib al-ʿArbʿah, Dār al-Rayyān li
al-Turāth, Cairo, n.d., vol. 3, p. 155.
9
Sahīh Al-Bukhāri with Fatḥ al-Bārī, vol. 4, p. 337; Sahīh Muslim with Sharḥ
al-Nawawī, vol. 10, p. 177.
10
Saḥ īḥ Al-Bukhāri with Fatḥ al-Bārī, vol. 4, p. 326.
11
Al-Nawawī, al-Majmūʾ Sharḥ al-Muhazzab, vol. 9, p. 225.
12
Ibn al-Humām, Fatḥ al-Qadīr, vol. 5, p. 111.
224 chapter nine
may say perhaps there was a little disagreement among scholars at the
beginning on khiyār al-sharṭ but has been accepted by ijmāʿ. What is
important here in relation to our discussion is that the legality of khiyār
al-sharṭ is not a point of contention among Muslim jurists nowadays.
It is worth mentioning that the option of stipulation is only valid with
regard to non-usurious sales. In addition, khiyār al-sharṭ is not applicable
to salam, and any option would make the contract of salam null and
void according to the majority. The Mālikīs allow such an option if the
period is very limited based on their opinion that the price in salam
could be deferred for three days after a mutual consent and even longer
if it has not been the subject of mutual consent during the conclusion
of the contract. As for usurious items such as currencies and barter
sale of foodstuffs, they must be concluded on the spot without delay.
Therefore, khiyār al-sharṭ is not applicable to currency trading. Yet, some
Muslim scholars have attempted to assign it to the modern paper cur-
rency, the same rule of fulūs as discussed by early scholars and where
some scholars have allowed khiyār al-sharṭ in fulūs, maintaining that as
they are not currency they are not usurious. However, we have already
demonstrated the weakness of this opinion and the discrepancy of the
analogy of considering paper money as a kind fulūs while discussing the
possibility of trading gold on a forward basis. Therefore, khiyār al-sharṭ
has no place in currency trading in all circumstances.
There are three main opinions on the matter. Abū Ḥ anīfah, Zufar and the
Shāfiʿi held that the option should not exceed three days as it is specified
in the hadīth, because khiyār al-sharṭ is allowed contrary to the norms
of qiyās as an exception. Therefore, no liberal recourse to it should be
allowed. In other words, khiyār al-sharṭ is initially against the objective
of sale, which should be binding immediately after its conclusion, but
the sharīʿah allowed it on the basis of necessity. Therefore, it should be
limited to the minimum possible period, which is three days.13
The Mālikis, on the other hand, have taken a more flexible stance
toward the understanding of the ḥ adīth, saying that the ḥ adīth men-
13
al-Kasāni, Badāiʾ al-Sanāiʾ, vol. 5, p. 157; Ibn ʿĀbidīn, Radd al-Muhtār, vol. 4,
p. 565. Al-Nawawī, al-Majmūʾ Sharh al-Muhazzab, vol. 9, p. 190.
KHIYĀR AL-SHARṬ , risk management and options 225
14
Ibn Rushd, Bidāyat al-Mujtahid, vol. 2, p. 208.
15
Ibn Qudāmah, al-Mughnī, vol. 3, p. 585; Ibn ʿĀbidīn, Radd al-Muhtār, vol. 4,
p. 565.
16
Samir Riḍwān, ʾAswāq al-Awrāq al-Māliyyah, p. 367.
226 chapter nine
17
Qaraḍ āwī, Bayʿ al-Murābaḥ ah li al-ʾĀmir bi al-Shirāʾ Kamā Tujīh al-Maṣārīf
al-Islāmiyyah Dirāsah fi Dawʿ al-Nuṣūṣ wa al-Qawaʿid al-Shariyyah Maktabat Wahbah,
Cairo, 1987, p. 23.
KHIYĀR AL-SHARṬ , risk management and options 227
18
See, al-Kāsāni, Badāiʿ al-Sanāiʿ, vol. 5, p. 264; Ibn al-Humām, Fatḥ al-Qadīr, vol. 5,
p. 504.
19
See, Ibn Rushd, Bidāyat al-Mujtahid, vol. 2, p. 211; al-Dasūqī, Sharḥ al-Dasūqī ʿalā
al-Sharh al-Kabīr, vol. 3, p. 103; Ibn Juzai, al-Qawānīn al-Fiqhiyyah, p. 264.
228 chapter nine
been prevented by the seller. In such a case, the buyer would be held
responsible.20
The Shāfiʿi have held that if the seller initiates the option, his owner-
ship of the commodity will continue. If the buyer retains the option,
the ownership of the commodity transfers to him because the contract
is binding from the seller’s side. And if both have stipulated the option,
the ownership of the commodity remains suspended during the time
of the option. If the commodity is destroyed before being transferred
by the seller to the buyer, the contract is considered annulled whether
the option is with the buyer, the seller or both. Similarly, if the destruc-
tion occurs after the buyer has taken possession, the contract would be
annulled if the seller holds the option.21
Although the opinion of some of the schools seems to be more com-
prehensible than the opinion of others with regard to the above issue, the
whole interpretation is based on ijtihād and not on clear text. Therefore,
it seems that the preference of any opinion, or of any school, will depend
on its practical flexibility and the consent of the parties concerned. This
wide range of opinions could also be a source of flexibility for those
willing to design new instruments based on khiyār al-sharṭ.
20
See, Ibn Qudāmah, al-Mughnī maʿ al-Sharḥ al-Kabīr, vol. 4, p. 219; al-Buhūti,
Kashshāf al-Qināʿ, vol. 3, p. 206; ʿAbd al-Rahmān al-Jizarī, al-Fiqh ʿalā al-Madhāhib
al-ʿArbaʿah, vol. 3, p. 171.
21
See, al-Nawawī, al-Majmūʿ, vol. 9, p. 214.
KHIYĀR AL-SHARṬ , risk management and options 229
the same asset from the bank. Especially if the murābaḥ ah between the
bank and the customer is not binding.
It can be easily shown that management of the above risk is possible
through khiyār al-sharṭ. In this case, a simple alternative for the Islamic
bank would be to retain an option for itself at the time of purchase
from the original supplier. Subsequently, if the client buys the asset as
promised, the option would automatically expire and the earlier contract
becomes binding. However, if the client fails to honor its commitment,
the Islamic bank would be in a position to exercise its option and rescind
the purchase contract.
Thus, khiyār al-sharṭ enables the Islamic bank to shift the above risk
to its original supplier. It is also quite realistic that the Islamic bank
may have to forgo a part of its profit since the original supplier may
charge a high price in case of the sale with option as compared to sale
without option. This is legally and ethically justifiable since the original
supplier is now exposed to greater risk.22
Similarly, it is not difficult to see the usefulness of khiyār al-sharṭ
for managing risk in the financial market, such as the stock market
which is characterised by volatile prices. The economic rationale of the
conventional options is believed to be their potential use as a hedging
or risk management device. For instance, individual A plans to buy or
sell stock X after a time period of three months. He may be adversely
affected if the price moves up or down during this time period. The
risk due to price movement could be hedged by purchasing a call (put)
with a given exercise price of, say, $50. The price paid for the option;
say $5 is in the nature of insuring against adverse price fluctuations. At
the end of three months even if the price moves up to $60 (down to
$40), individual A is not affected since he can buy or sell at the exercise
price of $50. While this is true, the fact remains that this contract can
be used for speculation.
An alternative scenario can be achieved through khiyār al-sharṭ Indi-
vidual A can now enter into a purchase or sale contract and stipulate
a condition of option for himself for a period of three months. At the
end of the three months, if the price of stock X moves up or down, it
can confirm the contract of purchase or sale at the known contractual
22
See, Obaidullah, “Financial Engineering with Islamic Options”, Islamic Economic
Studies, vol. 6, no. 1, November 1998, pp. 90–91. Islamic Development Bank; Al-Ashqar,
“khiyār al-sharṭ”, p. 43.
230 chapter nine
price and thus be immune to price risk. However, if the price of stock X
moves down or up then individual A can rescind the contract and pur-
chase (sell) in the market, thereby not losing the profit potential. Thus,
khiyār al-sharṭ may benefit the party holding the option at the cost of
the counterparty. However, the disadvantage caused to the counterparty
can be compensated in the form of a higher contractual price and need
not be paid separately upfront to the counterparty. It is this feature that
provides an effective curb to speculation on price differences and thus,
differentiates Islamic options from conventional ones.23
Despite the fact that the above alternative could be considered as a
genuine Islamic way of risk management, to consider it immune from
price differential and, by consequence free from the possibility of being
used for speculation is not totally true. The individual, who is buying
stock, as it is mentioned in the above example, is looking at the up or
down trend of the stock he has bought or sold. He is neither looking to
avoid possible cheating in the price from his counterpart nor a possible
defect in the commodity or stock he bought or sold. At the same time,
he is not asking for an option because he has no sufficient knowledge
of the subject matter he has agreed to buy. He is buying these stocks
with a view of seeing if the later price is in his favor in which case he
will exercise the option in order to benefit from price differential and if
the opposite situation happens he will leave the option to expire with-
out exercising it. Yet, we are not arguing that since the use of khiyār
al-sharṭ as it is in the above example is not immune from being used
for price differential gain, therefore, it should be declared illegal. On
the contrary, we would like to say the issue of price differential should
not be used as ground to ban certain transactions. Otherwise even the
use of khiyār al-sharṭ here would be the center of controversy since it
is not free from the intention of gaining from price differentials.
In the case of ijārah financing too, some risk factors can be easily
avoided or shared with khiyār al-sharṭ. One common risk inherent in
ijārah financing is the risk of finding an alternative use of the asset, as
well as of locating a new client where the lease period is shorter than the
economic life of the asset. This is also the risk of the asset absolete and
the uncertainty about the realisation of salvage value in the absence of an
23
Obaidullah, “Financial Engineering with Islamic Options”, pp. 91–92.
KHIYĀR AL-SHARṬ , risk management and options 231
active secondary market for the assets. This risk can be shared between
the Islamic bank and the lessee by providing an option to either or both
parties to confirm or rescind the contract after a certain period.
Although khiyār al-sharṭ even without any monetary compensation
in exchange for giving the right to cancel or confirm the contract, can
be a useful tool of risk management, some scholars have discussed the
possibility of charging a fee or premium for the option in khiyār al-sharṭ
so as to match the conventional option.
Kamālī has thus, maintained that the validity of charging a fee for
options is a matter that falls under the general subject of contractual
stipulation, a subject that invoked different responses from the schools
of Islamic law notwithstanding the affirmative nature of the source of
evidence on it. In principle, the contractual stipulation by the parties
should not be allowed to circumvent and override the given mandate
of the sharīʿah in contract. In other words, the parties are not at total
liberty to stipulate what they please. The liberty given by the general
theory of freedom of contract in Islamic law is subject to the condition
that stipulation should not overrule the clear injunctions of Islamic
law. Provided that this limitation is observed, there is in principle no
restriction on the nature and types of stipulations that the parties may
wish to insert into a contract.
According to Ḥ anafīs and Shāfis’ point of view stipulations are valid
when they are in line with the essence of the contract. Thus, a condition
to provide a guarantor or a surety in the form of mortgage or pawn is
legal provided that both parties agree upon it. The Mālikis are even more
explicit in validating stipulations having financial value, as for example
a buyer’s stipulation for transporting the goods to a certain locality. The
Ḥ anbalis are the most liberal. They maintain that stipulations which
fulfill a legitimate objective and realise a benefit and convenience, or
which may help to remove hardship and facilitate the easy flow of com-
mercial transactions are generally valid as a matter of principle.24
Thus, after elaborating on the opinion of the different schools on
the liberty of the parties involved in a contract to insert the conditions
they wish, Kamālī concluded that this analysis is not only affirmative
of the parties’ freedom to insert stipulations in contracts but also that
compensation or a fee may be asked by one who grants an option or
24
For more details, see Kamālī, Islamic Commercial Law: An Analysis of Futures and
Options, pp. 352–356.
232 chapter nine
25
Ibid., pp. 356–357.
26
Al-Māʾidah (5/1).
27
Al-Bukhārī, Saḥ īḥ al-Bukhārī with Fatḥ al-Bārī, Book of conditions (Shurūt ̣), v. 5,
p. 354.
28
See, Youssuf Sulaimān, “Raiʾ al-Tashrīʾ al-Islāmī fi Masāʾil al-Burṣah”, al-Mawsūʿah
al-ʿIlmiyyah wa al-ʿAmaliyyah lil bunūk al-Islāmiyyah, vol. 5, p. 425.
29
See, “Taʾqīb ʿalā Raiʾ al-Tashrīʾ al-Islāmī fi Masāʾil al-Burṣa h”, al-Mawsūʿah
al-ʿIlmiyyah wa al-ʿAmaliyyah lil bunūk al-Islāmiyyah, vol. 5, p. 441.
30
See, Muʿamalāt al-Burṣah, p. 151.
KHIYĀR AL-SHARṬ , risk management and options 233
31
Ahmad Muḥyī al-Dīn Ḥ assan, ʿAmal Sharikāt al-Istithmār, pp. 268–271; Samīr
Riḍwān, Sūq al-ʿAwrāq al-Māliyyah, p. 361.
32
Ahmad Muḥyī al-Dīn Ḥ assan, ʿAmal Sharikāt al-Istithmār, pp. 268–271; Samīr
Riḍwān, Sūq al-ʿAwrāq al-Māliyyah, p. 361.
234 chapter nine
not by him or his agent, but by the exchange authorities and the question
of manipulation and unfair advantage is basically not relevant.33
So, it is clear that khiyār al-sharṭ could serve as a tool of risk management
and fulfill some of the benefits associated with conventional options.
Moreover, if we consider the possibility of charging a fee for giving the
option, the benefits of khiyār al-sharṭ, as a tool of risk management,
may be parallel to those of conventional options.
However, some have objected to such a proposition on the grounds
that the subject matter in such a transaction will be a pure right, which
is not eligible to be the subject matter of a contract. However, the pres-
ent study will elaborate on the issue and critically analyze the different
opinions in a separate chapter.
Khiyār Al-Naqd
33
Kamālī, Islamic Commercial Law: An Analysis of Futures and Options, p. 360.
34
See al-Dur al-Mukhtār Sharh Tanwīr al-Abṣār, vol. 4, p. 571; ʿAbū Ghuddah,
al-Khiyār waʾAtharuhu fi al-ʿUqūd, p. 43.
35
al-Zailaʿī, Tabyīn al-Ḥ aqāʾiq sharh Kanz al Ḥ aqāʾiq, Dār al-Maʿrifah, Beirut, vol. 4,
p. 15.
36
Ibn ʿĀbidīn, Rad al-Muḥ tārʿ alā al-Dur al-Mukhtār, Dār al-Fikr, Beirut, 1979,
vol. 4, p. 567.
KHIYĀR AL-SHARṬ , risk management and options 235
bayʿ al-wafāʾ. Therefore, the legality of the first case is generally agreed
upon while Muslim jurists, depending on their admission or rejection
of bayʿ al-wafāʾ, disputed the legality of the second.
Although the first case is very similar to khiyār al-sharṭ, its admission
by way of analogy to khiyār al-sharṭ is another evidence that the validity
of khiyār al-sharṭ is in line with the norms of qiyās and therefore, any
analogy to khiyār al-sharṭ is permissible. Moreover, this ijtihād by the
Ḥ anafīs may constitute a precedent for those involved in Islamic com-
mercial law to design any contract based on analogy to khiyār al-sharṭ,
provided it could achieve something in the process of designing new
instruments.
The possible use of khiyār al-naqd as a means of risk management as
it is discussed in the first case is almost similar to that of khiyār al-sharṭ.
Thus, some of the contemporary studies, which have discussed khiyār
al-naqd advanced almost the same practical cases as the ones discussed
in khiyār al-sharṭ.37
The second aspect of khiyār al-naqd is a form of bayʿ al-wafāʾ. It is
when the seller says to the buyer “I will sell you this item on the condi-
tion that whenever I return to you the money that you have paid, you
have to return to me my item”. This kind of sale has been the source
of disagreement between Muslim scholars. The Mālikīs, Shāf ʿīs and
Ḥ anbalīs consider it as an illegal contract because it will be a kind of a
loan given in return for a specific benefit (qarḍan Jarra naf ʿan), which
is forbidden, while the Ḥ anafīs allowed it.
Thus, if we uphold the Ḥ anafīs’ position in the second case of khiyār
al-naqd, the practical aspect might be represented by the following sce-
nario: an Islamic financial institution is interested in a specific project
but it has not yet conducted the necessary studies about it and it did not
want to lose the opportunity. In this case, it could enter a contract on
the condition that whenever it returned the money that it had received,
there will be no deal.38
37
Abd al-Sattar Abū Ghuddah, “Khiyār al-Naqad wa Tatḅ iqātuhu fi Muʿāmalāt
al-Maṣārif al-Islāmiyyah” ʿAmāl al-Nadwah al-Fiqhiyyah al-Thāniyah, Bayt al-Tamwīl
al-Kuwaitī, Kuwait, 1993, pp. 186–188; Muhammad Shibbir, “Khiyār al-Naqd wa
Tatḅ iqātuhu fi Muʿāmalāt al Maṣārif al-Islāmiyyah” ʿAmāl al-Nadwah al-Fiqhiyyah
al-Thāniyah, Bayt al-Tamwīl al-Kuwaitī, Kuwait, 1993, pp. 222–225.
38
See Khālīd ʿAbd Allāh Shuʾaib, “Khiyār al-Naqaḍ wa Tatḅ iqātuhu fi Muʿāmalāt
al-Maṣārif al-Islāmiyyah” ʿAmāl al-Nadwāh al-Fiqhiyyah al-Thāniyah, Bayt al-Tamwīl
al-Kuwaitī, Kuwait, 1993, p. 244.
236 chapter nine
ʿArbūn refers to a sale in which the buyer deposits earnest money with
the seller as part payment of the price in advance, but agrees that if he
fails to ratify the contract, he will forfeit the deposit money, which the
seller can keep”.1 It is also defined as “a transaction whereby the buyer
pays only a small part of the price of a commodity (for instance two
dirhams), on the understanding that the seller will retain this amount
if the sale is not finally concluded due to withdrawal of the buyer”.2
However, Imām Mālik gives a somewhat more general definition
of ʿarbūn. It holds when a person buys or rents an animal and says to
the seller or the owner of the animal, “I will give you one dīnār or one
dirham or more or less and if I ratify the sale or the rent contract, the
amount I gave will be part of the total price. And if I cancel the deal,
then what I gave will be for you without any exchange”.3 The above
definition of Imam Mālik shows that ʿarbūn is not only possible in a
sale contract but also in a rent or leasing contract. This will widen the
use of ʿarbūn as we will see later. However, there is disagreement among
the classical schools of Islamic law about the legality of ʿarbūn.
The Majority4 held that it is an invalid contract and considered it
to be akin to misappropriating the property of others. Moreover, it
involves an unknown option or condition, which amounts to gharar.
The Ḥ anbalī school, on the other hand, considers it as a legal contract.
ʿUmar, the second caliph, and his son ʿAbd Allāh Ibn ʿUmar held a simi-
lar position. Among the followers certain prominent figures including
Mujāḥīd, Saʿīd Ibn al-Musayyib, Ibn Sīrīn, Nāfiʿ Ibn al-Ḥ ārith, and Zaid
1
Kamali, Islamic Commercial Law an Analysis of Options and Futures, p. 365.
2
Mohammad Ali El-Gārī, “Toward An Islamic Stock Market”, Islamic Economic
Studies, vol. 1 no. 1 December 1993, p. 14.
3
Al-Bājī al-Muntaqā Sharḥ al-Muwataʾ, vol. 4, p. 158.
4
See for instance, Ibn Rushd, Bidāyat al Mujtahid, vol. 2, p. 161. Al-Dirdīr, al-Sharḥ
al-Kabīr, vol. 3, p. 63; Al-Nawawī, Mugnī al-Muhtāj, vol. 2, p. 39; Ibn Qudāmā,
al-Mughnī, vol. 4, p. 224.
238 chapter ten
Ibn ʾAslam also held it to be lawful.5 The source of this difference lies
in the authenticity of two aḥ ādīth reported on the issue, which seem
to contradict each other.
Thus, the majority relied on a ḥ adīth reported by Imām Mālik in
al-Muwaṭtạ ʾ as well as by Imām Aḥmad, Nasāʾī, Abū Dawūd and Ibn
Mājāh to the effect that the Prophet (PBUH) prohibited the sale of
ʿarbūn. However, the ḥ adīth is considered to be weak (munqaṭiʿ).6
On the other hand, the Ḥ anbalī School relied on a ḥ adīth reported
by ʿAbd al-Razzāk to the effect that the Prophet was asked about ʿarbūn
sale and he declared it permissible. But this ḥ adīth is also declared to
be weak (mursāl).7 In addition, the Ḥ anbalīs relied on the report of
Nāfi’s Ibn al-Ḥ ārīth, the officer of the caliph ʿUmar in Makkah to the
effect that he bought from Safwān Ibn Umayyah a prison house for the
caliph ʿUmar for four thousand dirham on condition that if the caliph
approved of it, the deal would be final, otherwise Safwān would be
given four hundred dirhams.8
Further evidence could be invoked in support of the legality of bayʿ
al-ʿarbūn such as the ḥ adīth: “Muslims are bound by their stipulations
unless it be a stipulation which declares unlawful what is permissible
or permits what is unlawful”.9
Also it is reported in al-Bukhārī and narrated by Ibn Sirīn that “a
man said to a hirer of animals, ‘prepare your travelling animals and if I
do not go with you on such and such a day, I shall pay you a hundred
dirhams’. But he did not go on that day. Shuraiḥ said: If anyone puts a
condition on himself of his own free will without being under duress,
he has to abide by it. Also it is narrated by Ayyūb from Ibn Sīrīn that
“A man sold food, and the buyer told the seller that if he did not come
to him on Wednesday, his deal would be cancelled, and he did not
turn up on that day”. Shuraiḥ said to the buyer “You have broken your
promise” and gave the verdict against him. Ibn Ḥ ajar said, Sayid Ibn
Manṣūr has completed this transmission by the chain of Sufyān from
5
See, for instance, Ibn Qudāmā, al-Mughnī, vol. 4, p. 234; al-Qurtụ bi, Ahkām
al-Qurʾān, vol. 5, p. 150 and Ibn Qayyim, ʿIlām al-Muwaqqiʿīn ʿan Rab al-ʿĀlamīn,
vol. 3, p. 389.
6
See, for instance Ibn Ḥ ajar, Talkhīs al-Ḥ abīr, vol. 3, p. 17; al-Sanʿāni, Subul al-Salām,
vol. 3, p. 17 and al-Shawkāni, Nayl al-Awṭār, vol. 5, p. 153.
7
See al-Shawkānī, Nayl al-Awṭār, vol. 5, p. 153.
8
Ibn Qayyim, ʿIlām al-Muwaqqiʿīn ʿan Rab al-ʿĀlamīn, vol. 3, p. 389.
9
Al-Bukhārī, Saḥ īḥ al-Bukhārī with Fatḥ al-Bārī, Book of conditions (Shurūt)̣ , v. 5,
p. 354.
ʿARBŪN risk management and options 239
Ayyūb. The conclusion from this ḥ adīth is that Shuriaḥ in both cases had
given the verdict against the person who makes the condition against
himself without duress.10
A number of contemporary Muslim jurists have opted for the admis-
sion of ʿarbūn. Thus, al-Qaraḍāwī, in his analysis and comparison of the
evidence for and against the sale of ʿarbūn, stated that the opponents
of ʿarbūn have relied on a ḥ adīth and the argument that it is premised
on a condition, which entails appropriation by the seller of the buyer’s
property without any exchange. As for the ḥ adīth, it is unreliable. But
since the ḥ adīth upon which the proponents of bayʿ al-ʿarbūn rely is
also weak, al-Qaraḍāwī observes that the issue should consequently be
determined on rational grounds and here we note that Imam Ahmad
relied on the precedent of Umar Ibn al-Khat ̣ṭab and has considered
ʿarbūn to fall into the category of lawful appropriation. This ruling,
al-Qaraḍāwī adds, is more suitable to our own time and is in greater
harmony with the spirit of the sharīʿah, which seeks to remove hardship
and facilitate convenience for the people.11
Meanwhile, al-Zuhaili rejected al-Shawkānī’s argument that since the
two ḥ adīths contradict each other in that one prohibits ʿarbūn while
the other legalizes it, we should opt for the prohibition because, as
it is well known in Islamic jurisprudence, if there are two conflicting
commands on prohibition and permissibility, the prohibition should be
given priority.12 Al-Zuhailī said the evidence of the two parties, in this
case, is not equal. The proponents relied on the precedent of ʿUmar Ibn
al-Khat ̣ṭāb which could be considered as an ijmāʿ, because he was not
opposed by any of the companions.
Muṣtafā al-Zarqā highlighted the utility of ʿarbūn in modern com-
merce and the support it has received in general custom and legislation.
ʿArbūn provides a useful formula, which can be utilized to facilitate a
credible commitment, or a surety that the buyer will not change his
mind after finalising a sale. However, if he does so the seller can be
compensated for possible loss that has been caused as a result. The need
for such assurance is more evident in modern times when large orders
have to be entertained by making elaborate preparations involving a
chain of other subsidiary transactions that incur additional expenditure.
10
Ibid.
11
Al-Qaradāwī, Sharīʿat al-Islām, p. 114.
12
al-Shawkānī, Nayl al-Awṭār, vol. 5, p. 153.
240 chapter ten
It is likely that the seller who holds his goods or manufactures them
for the purpose, and waits until the buyer ratifies the sale may lose the
opportunity of selling his goods or may fail to sell them for a good
price, in which case he should be entitled to compensation, and ʿarbūn
responds to this need.13
ʿAbd Allāh Ibn Manīʿ, in his rejection of the opponents’ argument
that there is gharar in ʿarbūn14 since in such a contract there is no time
limit for the exercise of the right of cancellation of the contract said,
“We agree that there should be a time limit for the exercise of this
right, otherwise the possibility of gharar may have some grounds”.15
Yet, it should be noted that some sources of the Ḥ anbalī School did
not mention a time frame for the exercise of this right. But ʿAbd Allāh
al-Bassām argues that the Ḥ anbalīs, as a matter of principle, reject all
conditions of unlimited time in a contract, therefore, even if sometimes,
some Ḥ anbalī scholars did not mention explicitly this limitation in
their works, they are considering it. Moreover, some other Ḥ anbalī’s
scholars such as al-Maqdisī16 have mentioned it. Besides, it could be
argued that the issue of time limitation in this case is similar to that
of khiyār al-sharṭ.17 Some other contemporary scholars, such as Mājid
Abū Ruqayyah18 and Lāshīn Mohammad al-Qayyātī19 have also opted
for the legality of ʿarbūn.
Considering the fact that some contemporary scholars have opposed
bayʿ al-ʿarbūn on this ground, namely there is gharar in ʿarbūn since
in such a contract there is no time limit for the exercise of the right of
cancellation of the contract, the participants in the Islamic Fiqh Acad-
emy discussion on ʿarbūn opted for the inclusion of this condition in
13
Quoted by Kamālī, Islamic Commercial Law an Analysis of Options and Futures,
pp. 367–8.
14
For more elaboration on the existence of gharar in bayʿ al-ʿarbūn see, Ṣiddīq
al-Ḍ arīr, “Bayʿ al-ʿArbūn”, Majallat Majmaʿ al-Fiqh al-Islāmī, no. 8, vol. 1, 1994, pp.
647–669.
15
ʿAbd Allāh Ibn Manīʿ, “Baḥ t h fi Ḥ ukm Bayʿ al-ʿArbūn”, Majallat al-Buḥ ūth
al-Islāmiyyah, Riyadh Saudi Arabia, p. 170.
16
Al-Maqdīsī, Ghāyāt al-Muntahā, al-Maktab al-Islāmī, Damascus, 1961, vol. 2,
p. 26.
17
ʿAbd Allāh al-Bassām, Majallat Majmaʿ al-Fiqh al-Islāmī (discussion about bayʿ
al-ʿarbūn) no. 8, vol. 1, 1994, p. 766.
18
Mājid Abū Ruqayyah “Ḥ ukm bayʿ al-ʿarbūn, fi al-Islām”, Buḥūth Fiqhiyyah fi Qaḍāyā
Iqtiṣādiyyah Muʿāṣirah, pp. 393–415.
19
Lāshīn Mohammad al-Qayyātị̄ , “Bayʿ al-ʿarbūn,” Majallat al-sharīʿah wa al-Dirāṣāt
al-Islāmiyyah, no. 26, 1995, pp. 111–154.
ʿARBŪN risk management and options 241
20
ʿAbd al-Razzāq al-Sanhūrī, Masādir al-Ḥ aqq, vol. 2, p. 101. al-Zuhailī, “Bayʿ
al-ʿArbūn”, Majallat Majmaʿ al-Fiqh al-Islāmī, no. 8, vol. 1, 1994, p. 698. Rafiq al-Miṣrī,
“Bayʿ al-ʿArbūn”, Majallat Majmaʿ al-Fiqh al-Islāmī, no. 8, vol. 1, 1994, p. 729; al-
Qaraḍāwī, Majallat Majmaʿ al-Fiqh al-Islāmī (discussion about bayʿ al-ʿarbūn) no. 8,
vol. 1, 1994, p. 769.
21
Majallat Majmaʿ al-Fiqh al-Islāmī (discussion about-ʿarbūn), p. 756.
22
See, ʿAbd al-Majīd al-Ḥ akīm, al-Kāfī fi Sharḥ al-Qānūn al-Madanī al-Urdinī
wa al-Qānūn al-Madanī Irāqī wa al-Qānūn al-Madanī al-Yamanī fi al-Iltizāmāt
al-Shakhṣiyyah, pp. 264–274; al-Waṣīt Sharḥ al-Qānūn al-Madanī al-Urdinī, al-Dār
al-ʿArabiyyah li al Mawsūʿāt, vol. 2, pp. 134–141.
242 chapter ten
23
See for instance, ʿAbd al-Razzāq al-Sanhūrī, Maṣādir al-Ḥ aq, pp. 89–103; al-Sanhūrī,
al-Wasīt, vol. 4, p. 90; ʿAbd Allāh Ibn Maniʿ, “Bahth fi Ḥ ukm Bayʿ al-ʿArbūn”, pp.
173–175; Rafiq al-Maṣrī, “Bayʿ al-ʿArbūn”, pp. 726–729.
24
See for instance, al-Zhaili, “Bayʿ al-ʿArbūn”, Majallat Majmaʿ al-Fiqh al-Islāmī, no. 8,
vol. 1, 1994, p. 699; Rafiq al-Maṣrī, “Bayʿ al-ʿArbūn”, Majallat Majmaʿ al-Fiqh al-Islāmī,
no. 8, vol. 1, 1994, p. 731; Ṣiddīq al-Ḍ arīr, “Bayʿ al-ʿArbūn”, Majallat Majmaʿ al-Fiqh
al-Islāmī, 1994, no. 8, vol. 1, p. 705; Abd ʿAllāh Ibn Manīʿ, “Baḥth fi Ḥ ukm Bayʿ al-
ʿArbūn”, Majallat al-Buhūth al-Islāmīyyah, Riyadh, Saudi Arabia, pp. 177–178.
ʿARBŪN risk management and options 243
25
Also see, ʿAbd Allāh Ibn Manīʿ,“Baḥth fi Ḥ ukm Bayʿ al-ʿArbūn”, pp. 178–9;
al-Zuhailī, “Bayʿ al-ʿArbūn”, 700; Rafīq al-Miṣrī, “Bayʿ al-ʿArbūn”, p. 732.
244 chapter ten
26
See al-Zuhaili, “Bayʿ al-ʿArbūn”, p. 700; Rafiq al-Miṣrī, “Bayʿ al-ʿArbūn”, p. 733;
ʿAbd Allāh Ibn Manīʿ, “Baḥth fi Ḥ ukm Bayʿ al-ʿArbūn”, pp. 179–180.
ʿARBŪN risk management and options 245
stock market by buying shares from a very sound company in the hope
that the share prices of the company will go up in the coming days,
then he will be able to sell these shares in the spot market in order to
gain some profit before starting to finance his initial project. However,
due to the volatile nature of shares trading, there is a possibility that
the prices may go down as well. Therefore, he decides to buy the shares
through ʿarbūn. Thus, if his expectations are fulfillled, he will sell the
shares and make some profit. However, if his expectations are proven
to be wrong, his loss will be limited to only the amount paid as ʿarbūn
while the financing of his original project will not be affected.
ʿArbūn in Murābaḥah
27
al-Zuhaili, “Bayʿ al-ʿArbūn”, p. 701; ʿAbd Allāh Ibn Manīʿ, “Baḥth fi Ḥ ukm Bayʿ
al-ʿArbūn”, p. 180; Rafīq al-Maṣrī, “Bayʿ al-ʿArbūn”, pp. 734–5.
246 chapter ten
28
Ibn Maniʿ, “Baḥth fi Ḥ ukm Bayʿ al-ʿArbūn”, pp. 180–181.
29
See, Tariqullah Khan, “Derivatives: Discussion Forum”, Islamic finance. net.
Journal, p. 4.
ʿARBŪN risk management and options 247
also this offer from the tanker owner. What type of decision will maxi-
mise the social as well as financial value and benefit in this situation?
Moreover, murābaḥ ah could very well be a leverage device.30
However, it seems that in the above situation the Muslim country has
sold its right to ʿarbūn or its right to option and it is not just a simple
murābaḥ ah lilʾāmir bi al-shirāʾ case. It goes beyond that and the legal-
ity of such a transaction could only be justified if we accept the sale of
pure right, an issue that will be elaborated later.
Moreover, the proposed case stated above could be better handled
through salam rather than murābaḥ ah. First of all, in principle the
agreement between the bank and the customer under murābaḥ ah is just
a promise, but it has been considered as binding by modern jurists by
way of necessity due to the complexity of modern commercial trans-
actions and because of that these scholars always call for the use of
other instruments of investment rather than murābaḥ ah. Moreover, no
scholar has considered the binding promise in murābaḥ ah as a full type
of contract while ʿarbūn in principle is applicable only with a contract.
In contrast, such scepticism would not arise with salam because it is a
genuine contract, then the problems associated with the binding status
of the promise will be overcome.
Secondly, there is a difference of opinion among Muslim jurists about
the legality of selling something before it is in the possession of the
buyer as in the above case. Such a difference of opinion will be much
wider if the arrangement is just a promise and not a contract whether
it is binding or not as is the case with murābaḥ ah lilʾāmir bi al-shirāʾ.
The issue of sale before possession in salam, although disputed by the
majority, is meanwhile, legalized by the Mālikī school and very well
defended by Ibn Taymiyyah and his disciple Ibn Qayyim. Therefore,
to resort to a solution, which has a precedent, and which has a strong
legal basis is much preferable to a case with disputed legal grounds and
without precedent in the work of the early scholars. Lastly, the issue of
selling an item before taking possession of it could be solved through
the idea of parallel salam, which is not possible in murābaḥ ah.
On the other hand, it should be noted that the expression ʿarbūn in
murābaḥ ah has been used in several works on Islamic finance. It seems
that what these scholars mean by ʿarbūn is a penalty or liquidated
damages on the one hand, and a pledge or rahan on the other, rather
30
Ibid.
248 chapter ten
than ʿarbūn in its strict legal sense. Thus several Islamic institutions
are including in their contracts on murābaḥ ah lilʾāmir bi al-shirāʾ a
liquidated damages clause but under the name of ʿarbūn. For instance,
in the resolution adopted by the Second Conference on Islamic banks
held in Kuwait, it is stated that ʿarbūn in murābaḥ ah is legal on the
condition that the Islamic bank should not take from the amount of
ʿarbūn given to the client more than the real damage.31 Meanwhile, a
practical approach to the above is reflected in Dubai Islamic bank’s
sample of contract on murābaḥ ah and the general steps for murābaḥ ah
sale as adopted by the bank.32
Furthermore, the following question addressed to the Sharīʿah Board
of the Faisal Islamic bank of Bahrain may shed more light on the issue.
The bank accepts advance payments as ʿarbūn from its clients when it
receives their order to purchase. The advance is then deposited in an
account maintained specifically for such payments until the time the
goods (that were ordered by the bank on behalf of its client) arrive and
the client takes possession of them. This amount is kept as a guarantee
against payment of the agreed amount of instalment in the murābaḥ ah
contract. There are certain clients, however, who seek the return of an
appropriate amount of the advance to their current account with every
payment of the instalment. What is your opinion on this matter?
The Sharīʿah Board answered that ʿarbūn may be defined as what is
paid as a first part of the whole price when a contract is concluded,
and the buyer’s option either retain the good or nullify the contract.
In the event the contract is nullified, the ʿarbūn advance will belong to
the seller. If the contract is not concluded, however, and never passes
beyond being a pledge (on the client’s part to buy from the bank when
the goods arrive), then, whatever the client (who desires to purchase)
pays in advance would not be considered ʿarbūn. Under such circum-
stances, the amount will remain as a trust in the hands of the seller
until the time the contract of murābaḥ ah is actually concluded; and thus
time it will become a part of the overall price. In case the two parties
consider the amount paid, (once the contract has been concluded), a
pledge or rahan that may be held against the instalments owned by the
buyer, then, this will be lawful as long as the parties abide by the rules
31
See, Bank Dubai al-Islāmī, Fatāwā Sharʿiyyah fi al-ʿAmāl al-Maṣrifiyyah, 1996,
vol. 1, p. 33.
32
See, Bank Dubai al-Islāmī, al-Murābaḥ ah, Markaz al-Tadrīb wa al-Buḥūth, 1996,
pp. 14–17 & 26–29.
ʿARBŪN risk management and options 249
of the sharīʿah that a cash pledge must not be used to the advantage of
the one holding it, i.e. the pledgee. Therefore, if the amount is invested,
the profits earned on the investment will accrue to the benefit of the
pledger (not the one holding it); and such an act should not take place
unless the pledger or the bank’s client gives his or her permission to
the pledgee to make such an investment.33
In another similar fatwā, the Sharīah Board confirmed the first fatwā
that in the case of such an advance payment before the conclusion of the
contract, or the case of a pledge to purchase, such as that in murābaḥ ah
lilʾāmir bi al-shirāʾ, the advance given by the purchaser, is not called
ʿarbūn, nor does it have the same legal status. Instead it is an amount
given to the “purchaser”, in case he fails to live up to the end of his
bargain, the advance amount may serve to compensate the bank for its
expenses. If there is a remainder, after the bank is compensated, it will
be returned to the client. If the advance is insufficient to compensate,
the “purchaser” should pay the rest. This is the opinion of those who
hold the view that a pledge or a promise to purchase in murābaḥ ah
lilʾāmir bi al-shirāʾ is binding.34
It may be noted here that despite the fact that the above clause is
not an ʿarbūn as it is legally defined but rather looks like a clause on
liquidated damages or a penalty, the Islamic financial institution using
it could manage its risk exposure to some extent. Although the above
clause is apparently similar to a clause of liquidated damages, in practice
some Islamic banks try to avoid the transfer of the dispute over the
assessment of the real damage, inflicted on it following the customer’s
failure to fulfill his binding promise to purchase, to the court as it is
the norm in dealing with such cases. They will try to insert, from the
beginning, a clause in the contract that in such cases, (amely the assess-
ment of the real damage inflicted), the dispute should be referred to
the Sharīʿah Board of the Islamic bank for a final decision which shall
not be contested in court.35 Indeed, such a clause will render the issue,
somehow, different from a pure penalty and save the Islamic bank the
cost and time of court proceedings. On the other hand, it should be
33
See Yusuf Talal DeLoenzo (editor and translator) A Compendium of Legal Opin-
ions on the Operations of Islamic Banks, Institute of Islamic Bank and Insurance, UK,
1998, p. 50.
34
See, ibid., pp. 21–22.
35
See Dubai Islamic bank’s sample on murābaḥah al-Murabaḥ ah, Markaz al-Tadrīb
wa al-Buḥūth, Bank Dubai al-Islāmī, 1996, p. 29.
250 chapter ten
noted that the Islamic Fiqh Academy in its final resolution no. 76/3/d8
disallows ʿarbūn in murābaḥ ah lilʾāmir bi al-shirāʾ.
ʿArbūn in Salam
36
Ibn ʿĀbidin, Ḥ āshiyat Rad al-Muḥtār, p. 206.
ʿARBŪN risk management and options 251
opinion of the above scholars. This form of iqālah has some similarity
with bayʿ al-ʿarbūn. In fact, Imam Ahmad used the case as evidence
for the legality of ʿarbūn. In both cases, there is a cancellation of the
contract in exchange for a specific amount of money. On the other
hand, some others such as Ibn ʿAbbās, al-Shʿabī Atāʾ and Ḥ ammād
maintained that it is illegal.37 They described this form of iqālah as a
kind of a new contract, and in consequence it is illegal on the ground
that it involves the combination of two contracts (the contract of sell-
ing the commodity and that of cancelling it at a discounted price) in
a single transaction.38
However, it seems that this is not a form of combination of two con-
tracts as it has been explained before. It is just a kind of stipulation in
the contract, which does contradict its objectives and, therefore, Muslims
are bound by their stipulations unless it is a stipulation which prohibits
what is allowed, and vice versa. Therefore, it could be said that ʿarbūn
in salam is permissible if it is stipulated by the buyer. However, if it is
stipulated by the seller it will be illegal.
ʿArbūn in ʿIstiṣnāʿ
37
See Muṣannaf Ibn Abī Shaybah, vol. 6, p. 108; Muṣannaf ʿAbd al Razzāq, vol. 8.
p. 18.
38
Ibn Rushd, al-Muqaddimāt, p. 548.
39
See, Vogel and Hayes, Islamic law and Finance, p. 282.
252 chapter ten
is just a kind of weakness and lack of ijthād although even some early
scholars have mistakenly argued for such an act. Therefore, to judge
the legality of ʿarbūn in ʿistiṣnāʿ, the only requirement which needs to
be considered is whether or not such a transaction is in line with the
general principle of freedom of contracts and conditions. Thirdly, the
Islamic Fiqh Academy, in its resolution no. 66/3/7, has already endorsed
the opinion that ʿistisnāʿ should be binding on both parties and could
include a clause of liquidated damages. Similarly, it has endorsed that
ʿarbūn is legal in all kinds of sales except those kinds of sale which
require immediate delivery and ʿistiṣnāʿ is not such a contract. Therefore,
it could be concluded that arbūn in ʿistiṣnāʿ is legal.
Keeping in mind the above situation, suppose Kuwait Airways wants
to purchase ten Boeing 777 aircraft to be delivered in two years. Boe-
ing requires progress payments roughly parallel to the growing value
of the partially completed planes and an ʿistiṣnāʿ contract is drawn
up. However, Kuwait Airways is uncertain about the level of future
demand and wants the right to cancel the order at any time within the
first year of the agreement. The purchaser (with or without a parallel
ʿistiṣnāʿ arrangement providing financing) contracts an ʿarbūn with a
non-refundable deposit that will properly compensate Boeing (and any
financing intermediary) for losses and inconvenience if the cancellation
option is exercised.40
40
Ibid., pp. 281–282.
ʿARBŪN risk management and options 253
41
Kamālī, Islamic Commercial Law an Analysis of Options and Futures, p. 369.
254 chapter ten
does not involve any contradiction with the rules and requirements of
the sharīʿah.42
On the other hand, after quoting parts of Ibn Qudāmah’s analysis on
ʿarbūn, Vogel and Hayes said, “The discussion shows how closely the
ʿarbūn contract can be analogised to the pure call option. It also shows
how, if it has been given the right market or institutional framework,
an ʿarbūn contract could be devised with results and pricing identical
or nearly identical to the call option”.43
Accordingly it could be concluded that ʿarbūn could be the Islamic
alternative to a call option without contravening sharīʿah principles.
However, the question remains as to what would be the Islamic alter-
native to a put option?
42
See, Mohammad Ali El-Gārī, “Toward An Islamic Stock Market”, p. 14.
43
Frank E. Vogel and Samuel Hayes, III, Islamic Law and Finance, Religion, Risk,
and Return, p. 162.
ʿARBŪN risk management and options 255
44
al-Sanhūri, al-Wasīt, vol. 1, p. 261.
45
Rafīq al-Maṣrī, “Bayʿ al-ʿArbūn”, p. 730.
256 chapter ten
46
Mjallat Majmaʿ al-Fiqh al-Islāmī, discussion (about ʿarbūn), p. 759.
47
Abd al-Razzāq al-Sanhūri, Maṣādir al-Ḥ aq, Dār al-Maʿārif, Cairo, vol. 2, p. 96.
48
al-Shāfii al-ʿUmm, vol. 3, p. 3; Ibn Rushd, al-Muqaddimat al-Mumahhidāt, vol. 2,
pp. 61–62.
49
See for instance, Ibn Rushd al-Muqaddimāt al-Mumahhidāt, vol. 2, pp. 61–62;
Ibn Taymiyyah, Majmūʿ al-Fatāwā, vol. 29, p. 226; Ibn ʿĀbidīn, Rad al-Muḥtār, vol. 4,
p. 176.
ʿARBŪN risk management and options 257
action may be reached on the basis of the assumption that the contract
involves the rendering of a service by a certain party who is holding
shares and wishes to sell them. The fee paid for the service rendered,
the period and effort are fixed by the investor in agreement with that
party. It would not serve the purpose, if that party looked for a buyer
as soon as possible. What is required is that a buyer should be found
within a certain period (for example 90 days) during which an investor
will have the option. The party referred to is some central authority such
as the stock exchange administration or a clearinghouse at the exchange
or the market maker but not stockbrokers or investors. The function of
this party is actually the rendering of this service. Such a party is not a
stockbroker who is an agent. The entity should act in a manner similar
to the formula of the European rather than the American options.50
El-Gārī’s proposition seems to be based on the contract of ijarāh and
juʿālah. However, the practical success of the formula as an alternative
to a put option needs to be ascertained especially when El-Gārī himself
acknowledges that in certain circumstances, (namely when the buy
orders fall short of the sell orders), some problems may arise.
Another proposition about a put option is the suggestion by Vogel
and Hayes under the concept of the third party guarantee in which a
customer can use a bank as a guarantor. The bank would be compen-
sated by an administrative fee paid by the purchaser of the item. To be
Islamically acceptable, this fee cannot be stated as a percentage of the
value of the contract. In case of default, the bank can seize and sell the
item to help satisfy the purchaser’s remaining obligations to the seller.
From the purchaser’s viewpoint, the third party guarantee can be taken
as a put option obtained from the bank in exchange for a premium.
If at some future time the purchaser concludes that the item is not as
valuable as the remaining instalments, he could theoretically stop pay-
ing the instalments to the seller and surrender the item to the bank.
This is, therefore, a put option with a strike price equal to the remain-
ing instalment payments (as a practical matter however, he can write a
provision allowing him to recover from the purchaser any loss thereby
suffered). Assuming that the bank sold guarantees to many customers,
50
See, Mohammad Ali El-Gārī, “Toward An Islamic Stock Market”, pp. 15–16.
258 chapter ten
51
See Frank E. Vogel and Samuel Hayes, III, Islamic Law and Finance, Religion, Risk,
and Return, pp. 228–229.
ʿARBŪN risk management and options 259
It is clear that the first objection is the most important one. It is directed
to the essence of the contract by invalidating its subject matter. However,
we will deal with it in the coming chapter in more details.
Concerning the second objection, namely the right to rescind the
contract being given to both the seller and the buyer while in ʿarbūn it is
only granted to the buyer, it could be said that even if this right is guar-
anteed to the seller, no ribā or gharar is involved in such a transaction.
Moreover, it does not contradict any specific sharīʿah text. Therefore, it is
a legal transaction based on the general theory of freedom of contracts
and stipulations. Similarly, the right to option in khiyār al-sharṭ was
originally guaranteed by text only to the seller but later it was extended,
by way of ijihād, to the buyer or both of them. Therefore, to extend the
right to ʿarbūn to the seller as well, is a similar case, as long as it does
not contradict a specific text and, indeed, such an extension does not
contradict any text. But it is rather a condition that is harmonious with
the benefit of the contract and its objectives.
The third objection is that the parties are just looking for price dif-
ferentials and are not willing to fulfill the objectives of the contract; it
could be said that the issue of price differentials has been declared as
unlawful by some Muslim scholars who equate it with excessive specula-
tion, which will lead to market instability and then injustice. Moreover,
52
Mukhtār al-Salāmī, “al-Ikhtiyārāt”, Majallat Majmaʿ al-Fiqh al-Islāmī, p. 233;
al-Zuhaili, “al-Ikhtiyārāt”, Majallat Majmaʿ al-Fiqh al-Islāmī, p. 256, ʿAbū Ghuddah,
“al-Ikhtiyārāt”, Majallat Majmaʿ al-Fiqh al-Islāmī, p. 334.
260 chapter ten
53
Rafīq al-Miṣrī, “Bayʿ al-ʿArbūn”, p. 725.
ʿARBŪN risk management and options 261
54
Umar Chapra, “Islamic Banking and Finance: The Dream and Reality”, Hamdard
Islamicus, Karachi Pakistan, vol. XXII, no. 4, p. 74.
262 chapter ten
55
Sāmī Ḥ asan Ḥ amoud, “Progress of Islamic Banking: The Aspirations and the
Realities”, Islamic Economic Studies, June 1994, pp. 125–126.
56
See The Reuters Financial Training Series, An Introduction to Derivatives, p. 88.
57
Ibid.
ʿARBŪN risk management and options 263
58
Ibid., p. 87.
59
Ibid., p. 89.
60
Ibid.
61
Ibid., 87.
264 chapter ten
62
ʿAbd al-Ḥ alīm, ʿUmar, al-Iqtiṣād al-Islāmī, p. 50.
63
Imām Mālīk, Al-Muwaṭtạ ʾ, vol. 5, p. 39.
64
Sunan al-Nasāʾī, vol. 7, p. 295.
65
al-Nawawī, al-Majmūʾ, vol. 9, p. 321; Nihāyāt al-Muhtāj, vol. 3, p. 433.
ʿARBŪN risk management and options 265
me for 10,000 dīnārs’. This interpretation has been reported from the
Ḥ anafīs,66 Ḥ anbalīs67 and al-Shāf ʿis68 in their second opinion.
In the third interpretation the buyer says to the seller, ‘I will buy one
of the these cloths from you, for instance, if it is the first, it will be for
two dīnārs and if it is the second it will be at three dīnārs’. Imām Mālik
prohibits this kind of sale on the ground of blocking the means or sad
al-zarāʾiʿ because it is a kind of ribā. However, some of his followers
objected to his interpretation arguing that this kind of sale should be
declared legal and it is part of khiyār al-taʿyīn.69
The fourth interpretation is reported from Ibn Qayyim who, after
rejecting the first interpretation says “it is when someone says to another
person I am selling to you this item on deferred basis lasting for one
year, for one hundred dirhams, for instance, on condition that I will buy
it from you immediately after selling it to you now for eighty”. Then he
commented that this is the only interpretation of this ḥ adīth and no
other interpretation could be given to it. This interpretation is also in
line with the other ḥ adīth on the issue that, “whoever is involved in
such a sale has only two possibilities whether to take the price which
is to his disadvantage or take the ribā”. Commenting on Ibn Qayyim’s
interpretation al-Qaraḍāwī said, “This is the interpretation, which we
prefer because it is in line with the objective of the ḥ adīth, which warns
against bay ʿal-ʿīnah and the use of tricks (ḥ iyal) which lead to ribā.70
These are the main interpretations of these aḥ ādīth and the above
mentioned concept of sale. However, it is clear that none of them would
be associated with options trading and in consequence Samīr Ridwān
and ʿAbd al-Ḥ alīm’s claim is unfounded.
66
Al-Sharakhsī, al-Mabsūṭ, vol. 13, p. 16; Ibn al-Humām, Fatḥ al-Qadīr, vol. 5,
p. 218.
67
Ibn Qudāmah, al-Mughī, vol. 4, pp. 233–234.
68
Al-Shaf ʿi, al-ʿUmm, vol. 3, p. 67.
69
Al-Bājī, al-Muntaqā, vol. 5, p. 109; Ibn Rushd, Bidāyat al-Mujtahid, vol. 2, p. 154.
70
Al-Qaraḍāwi, Bayʿ al-Murābaḥ ah li al-ʿĀmir bi al-Shirā Kamā Tujrīh al-Maṣārif
al-Islāmiyyah Dirāsah fi Dawʿ al-Nuṣūṣ wa al-Qawāʿid al-Sharʿiyyah, Makṭabat Wahbah,
Cairo, 1987, p. 53.
CHAPTER ELEVEN
Kamālī, for instance, argued, “the parties have the freedom to insert
stipulations in contracts but also that a monetary compensation or a
fee may be asked by one who grants an option or a privilege to the
other. If the seller is entitled to stipulate for a security deposit or pawn,
then it is a mere extension of the same logic that he may charge the
buyer and impose a fee or compensation in respect to such options
and stipulations that are to the latter’s advantage . . . we conclude that
options may carry premium and there should be basically no objec-
tion to this”.1 Youssuf Sualimān, ʿAli ʿAbd al-Qādir and al-Jundī, have
advanced similar arguments based on the general theory of freedom
of contracts and stipulations.
The Islamic Investment Study Group of the Securities Commission
in Malaysia has opted for a similar opinion in one of its reports while
discussing the legality of call warrants, arguing that such a right has
the characteristics of an asset, which satisfies the concept of ḥ aqq mālī
or financial right which is transferable since it could be possessed and
one can benefit from it. Thus, Sheikh Azmi Ahmad maintains that after
an in-depth investigation, the Islamic Investment Study Group of the
Securities Commission approved that call warrant is an instrument
within the principles of sharīʿah based on the following factors.
1
Kamali, Islamic Commercial Law: An Analysis of Option and Futures, pp. 356–357.
268 chapter eleven
The Islamic Investment Study Group relied also on the report of Nāfiʿ Ibn
al-Hārith, caliph ʿUmar’s officer in Makkah to the effect that he bought
a prison house from Safwān Ibn Umayyah for the caliph ʿUmar for four
thousand dirhams on the condition that if the caliph approved it, the deal
would be final, otherwise Safwān would return four hundred dirham.3
And by what is reported in al-Bukhārī and narrated by Ibn Sīrīn that “a
man said to a hirer of animals, ‘prepare your travelling animals and if
I do not go with you on such and such day, I shall pay you a hundred
dirhams. But he did not go on that day. Shuraih said: If anyone puts a
condition on himself of his own free will without being under duress,
he has to abide by it”. Commenting on these two reports, The Islamic
Investment Study Group concluded, “this shows that there are practices
of paying for the right to buy or to rent something. However, there is no
2
See, Sheikh Azmi Ahmad, “Islamic Instruments Study Group: A Report”, paper
presented in International Islamic Capital Market Conference, Ballroom, Crown Princess
Hotel, Kuala Lumpur Malaysia, pp. 8–9.
3
Ibn Qayyim, ʿIlām al-Muwaqqiʿīn ʿan Rab al-ʿĀlamīn, vol. 3, p. 389.
sale of rights and legality of options 269
dalīl to prove that this right could be transferred. Therefore, the issue
is whether this right could be transferred or not”.4
Although the present study will argue for the same conclusions, that
is those of Kamālī and the Islamic Investment Study Group, the above
arguments seem to have been based on the general theory of freedom of
contract and conditions where the Ḥ anbalī position is the most liberal
and in line with the objectives of the sharīʿah. Although this principle
is fundamental and the primary basis for the legality of selling a right,
it seems to be too general to face the huge literature and arguments
advanced against the permissibility of selling a pure right. Therefore,
more evidences are needed in order to prove beyond reasonable doubt
the legality of selling a right. Furthermore, the opponents of the sale of
rights advance their arguments depending on the opinion of some early
jurists, such as, Ibn ʿĀbidīn, by quoting their statements as evidence for
the illegality of the sale of pure rights. Therefore, it seems that it could
be effective to prove the opposite from the same sources, namely the
early works of Muslim jurists.
On the other hand, it should be noted that the Islamic Investment
Study Group has differentiated between the right in a call warrant and
the right of khiyār in a sale, which seems to be unwarranted if it is
meant by ḥ aqq al-khiyār, in khiyār al-sharṭ because the two rights are
of the same nature and, therefore, could not be reasonably distinguished
from one another.
On the opposite side, namely the stand that options involve the
sale of a pure right, which is illegal in Islamic law, and which renders
trade on options illegal, we found the participants in the Islamic Fiqh
Academy discussion on options adopting a more general stand con-
cerning the sale of pure rights (al-ḥ uqūqq al-mujarradah). For instance,
we found Mukhtār al-Salāmī5 quoting only the general statement of
al-Kāsānī that “pure rights could not be exchanged” itself quoted by
Ibn ʿĀbidīn in Rad al-Muhtar. Similarly, al-Ḍ arīr6 has quoted only
one passage from Ḥ āshiyat Ibn ʿĀbidīn to show that a pure right could
not be exchanged. But one may ask if our respected scholars want to
limit themselves to just a single quotation from the classical sources of
Islamic law to justify their conclusion in such an important and totally
4
See, Sheikh Azmi Ahmad, “Islamic Instruments Study Group: A Report”, pp.
7–8.
5
Al-Salāmi, “al-Ikhtiyārāt”, p. 235.
6
al-Ḍ arīr, “al-Ikhtiyārāt”, p. 264.
270 chapter eleven
new phenomenon, why not quoting from the Mālikī school’s works, the
prevailing mazhab in Tunisia and Sudan, the country of al-Salami and
al-Ḍ arīr respectively and which is the most flexible school in legalising
the exchange of rights? However, such an approach may be understood
if we put it in the context of importance given to the issue of options
as a whole when three out of five of those who presented papers on
options acknowledge that they have only prepared a short paper.7 Yet,
it is logically impossible for a short paper to give the necessary analysis
of a topic, which is totally new. ʿAbd al-Wahhāb Abū Sulaimān in his
paper, on the other hand, referred to more works concerning the concept
of right but his analysis is not convincing. For instance, after reporting
the opinion of the Ḥ anbalīs in the division of the concept of right, he
gives the example of khiyār al-sharṭ as an example of rights, which have
no relation with property. Then he concluded that the right to option
in conventional option trading is similar to that of khiyār al-sharṭ and
therefore, it could not be the subject matter of a contract and could
not be inherited. Moreover, it has no corporal physical existence and
therefore, a contract in such a thing will be a contract in a nonexistent
thing (bayʿ al-maʿdūm), which is illegal in Islamic law.8
However, such an analysis on the division of the concept of right is
somehow inadequate for the following reasons: First of all, it did not
refer to the opinion of other schools of Islamic law especially the Mālikīs
and Shāf ʿīs who consider the right in khiyār al-sharṭ as a right related
to property which therefore, could be inherited. Secondly, even the
Ḥ anbalī position is not well discussed. They maintained that the right
in khiyār al-sharṭ could be inherited only if the beneficiary requested
that. Does this mean that the request of the beneficiary will transform
this right from a right, which is unrelated to property to a right which
is so to it? The discussion of the whole issue will be investigated later.
Now we are just pointing to ʿAbd al-Wahhāb Abū Sulaimān’s analysis.
Furthermore, it seems a little strange for Abū Sulaimān to consider the
sale of such a right as a part of bayʿ al-maʿdūm because it has no physi-
cal existence. But what will be Abū Sulaimān’s response to the different
cases involving the sale of rights legalized by classical jurists or those
legalized by the Fiqh Academy itself, as we will touch on some of them
7
Majallat Majmaʿ al-Fiqh al-Islāmī, “al-Ikhtiyārāt”, discussion session, no. 6 vol. 1,
pp. 565; 569; 573.
8
ʿAbd al-Wahhāb Abū Sulaimān, “al-Ikhtiyārāt”, Majallat Majmaʿ al-Fiqh al-Islāmī,
no. 6 vol. 1, pp. 307–308.
sale of rights and legality of options 271
later? On the other hand, addressing the issue of the subject matter in
a sale contract in the Mālikīs school, Abū Sulaimān concluded that the
Mālikī position is that the subject matter should be a physical thing
and be present at the time of contract whether in reality or at least
in a constructive manner (bi al-quwwah). However, what will be Abū
Sulaimān response to the Mālikī’s stance which allows the sale of the
right of shuf ʿah (pre-emption) or other rights legalized by the Mālikī
school as we will elaborate later?
Meanwhile, ʿAbū Ghuaddah’s paper compared the right in conven-
tional options with that of khiyār al-sharṭ and concluded that the right
in khiyār al-sharṭ is not a right related to property (ḥ aqq mālī) and
therefore, it could not be inherited or exchanged.9
However, it is somewhat amazing to note that Abū Ghuaddah in his
book Al-Khiyār waʾAtharuhu fi al-ʿUqūd,10 which was originally his doc-
toral dissertation, concluded that the right of option in khiyār al-sharṭ
is a right related to property and, therefore, it could be inherited. Yet,
we may say he has changed his first opinion since it is normal for a
Muslim scholar to change his opinion on a specific issue if he comes
across new evidence to sustain the new position. Unfortunately, in his
paper on options Abū Ghuaddah fails to bring forward any new evidence
to rebut the strong argument he advanced in his early book.
This position has also been adopted in the final resolution of the
Academy despite the fact that some of the participants in the discus-
sion have voiced the opposite view. Thus, the resolution read “options
contracts as currently applied in the world financial market are a new
type of contracts which do not come under any one of the sharīʿah
nominated contracts. Since the subject mater of the contract is neither
a sum of money nor utility or a financial right, which may be waived,
therefore, the contract is not permissible in the sharīʿah”.
This resolution has a great impact on other studies on options later
whether by rejecting options from the beginning because a pure right
could not be considered the subject matter of a contract since it is not
a māl or property or by attempting a new alternative, which should
not involve the sale of a right. Thus, El-Gārī for instance, maintained
that “if we consider the above contract as an independent agreement,
9
Abū Qhuddah, “al-Ikhtiyārāt”, Majallat Majmaʿ al-Fiqh al-Islāmī, no. 6 vol. 1,
p. 334.
10
ʿAbd al-Sattār Abū Qhuddah, al-Khiyār waʾAtharuhu fi al-ʿUqūd, Dallah al-Barakah,
Jeddah, pp. 317–325.
272 chapter eleven
that is separate from the sale contract and its subject is a right and
an obligation (i.e. a right for the buyer and an obligation towards the
seller), then the problem is that in the sharīʿah, the subject involved is
not eligible to become the substance of a sale contract. The said right
does not have a tangible and material quality, but it is indeed intangible
and may not be sold or bought. It is only similar to a pre-emptive right
(shuf ʿah, right of custody and guardianship) all of which, while allowed
in the sharīʿah, are intangible rights that are not allowed to be sold or
relinquished against monetary consideration”.11
Vogel and Hayes have also maintained that Islamic law gives little
hope for the approval of options contracts. Rather than that, it poses a
series of objections of which an option requires payment for something
that is a mere intangible “right” (ḥ aqq) not property (māl) in the usual
sense (i.e. a tangible good or utility taken form a tangible good) as to
which alone compensation can be demanded. This is one basis for the
objection of some scholars that option price is unearned”.12 A similar
stand has been taken by other writers.13
Thus, given the above-mentioned facts, the present study will try to
discuss the different opinions on the issue from the different classical
sources of Islamic law in regard to whether a ḥ aqq is considered as
property or not and how, and to examine the positions of the different
schools of Islamic law. More importantly, since there is no specific verse
or ḥ adīth on the issue, we need to ascertain what the legal bases are for
the legality or prohibition of selling a pure right. At the same time, the
present study will try to identify the general principles of what should
be considered or not as a ḥ aqq mālī or a financial right in Islamic law
based on the treatment of previous Muslim scholars of the different
issues involving the exchange and sale of rights.
Thus, we look first into the concept of property or māl in the dif-
ferent schools of Islamic law and how the concept of property or māl
adopted by the early Ḥ anafī scholars is proven to be inconsistent and
11
El-Gārī, “Towards an Islamic Stock Market”, p. 13.
12
Vogel and Hayes, Islamic law and Finance, p. 164.
13
See for instance, Osman Babikir Ahmed, Islamic Financial Instruments to Manage
Short-Term Excess Liquidity Islamic Research and Training Institute Islamic Development
Bank, Jeddah Saudi Arabia, Research paper, no. 41, p. 30; Fuad al-Omar & Mohammed
Adel-Ḥ aqq, Isalmic Banking Theory, Practice & Challenges, Oxford University, 1996,
p. 92; Tariqullah Khān, Islamic Financial Derivatives, Discussion Forum, Islamic finance
net. P. 4; Obaidullah, “Financial Engineering with Islamic Options”, p. 76; ʿAbd al-Ḥ alim
Omar, al-Iqtiṣad al-Islāmī, p. 50.
sale of rights and legality of options 273
Three major schools of Islamic law, namely the Mālikī, Shāf ʿīs and
Ḥ anbalīs are of the opinion that usufructs or manāfiʿ are properties
or māl and could therefore, be subjected to contractual exchange
similar to physical property (ʿayn). Thus, the Shāf ʿī defined property as
what we can benefit from . . . whether it is corporeal (ʿayn) or usufruct
(manfaʿah).14 Similarly, al-Nawawī defined it as “everything that has a
benefit and therefore, could be exchanged”.15 Meanwhile, al-Suyūtī said,
“the title of property could be attributed to what has a value, could be
exchanged and, if one destroys it he will be held liable, however, little
it is and, people will not reject it”.16
Commenting on this definition, al-Duraynī said that it is clear from
this definition that custom is the basis for considering something as
property. Al-Suyūti has also said, “the title of property could be attrib-
uted to what has a value”. This means it has a value among people by
custom and becomes the subject matter of exchange. It is logical to
14
Al-Zarkashi, al-Qawāʿid, p. 343.
15
al-Nawawī, al-Majmūʿ, vol. 9, p. 345.
16
al-Suyuti, al-Ashbāh wa al-Nazāʿir, p. 97.
274 chapter eleven
say that everything which has value possessess manfaʿah that we could
benefit from, because anything which has no benefit would not have
a value and therefore, it is not a property and would be thrown away
by people. It could be understood from the above definition that the
concept of property includes all usufructs (manāfiʿ) and non-corporeal
property if it becomes a custom among people to sell it or transact
over it. On the other hand, if we realise that the value is the basis for
a thing to be a property or not and that the value would be based on
manfaʿah, we could conclude that manfaʿah is the basis of attributing
a value to something.17
Similarly, al-Shātị bī said: “property is anything which could be pos-
sessed and none could claim it from his owner unless by legal means”.18
Commenting on the above definition, al-Durainī said, the legal phi-
losophy of Imam al-Shātị bī regarding the concept of māl is based on
the fact that it is a legal attribute (ʾitibar, waṣf sharʿī) or the relation of
possession between the thing possessed and the possessor. Given that
this act of possession is approved by the sharīʿah, then it gives the pos-
sessor the right of taṣarruf or disposal in the object concerned . . . this
legal consideration is the basis for the concept of property in the Mālikī
school. It includes corporal and non-corporal property, usufruct and
all non-tangible property like “rights”, because all right are based on
possession and the substance of a right is ikhtiṣāṣ competence, power
and authority. The ikhtiṣāṣ is the substance of possession. Otherwise
such “rights” could not be considered rights in the strict sense of the
term but just ibāḥ āt and if the rights could be possessed, rights are
properties because property is synonymous with possession in the
Mālikī school.19
Property is also defined as “whatever has a value and could be sold
based on this characteristic and whoever destroys (ʾiʿtadāʾ alaihi) it
would be held liable”.20 In other world it is anything which has permis-
sible benefit like a house, camel, worm and larva for fishing . . . but any
thing which has no manfaʿah like an insect or has benefit but is prohib-
17
al-Duraynī, Buḥ ūth Muqāranah fi al-Fiqh al-Islāmi wa Uṣūlihi, Muʾassat al-Risālah
Beirut, 1994, vol. 2, p. 17.
18
Mohammad Ibn Ibrāhim al-Shātị bi, al-Muwāfaqāt, Matbaʿat al-Madani, Egypt,
1975, vol. 2, p. 17.
19
al-Duraynī, Buhūth Muqāranah fi al-Fiqh al-Islāmi wa Usulihi, vol. 2, pp. 23–25.
20
al-Suyūtī, al-Ashbāh wa al-Nazāʿir, Matbat Muṣtaphā al-Ḥ alabī, Egypt, p. 237;
Sharaf al-Dīn al-Maqdisī, al-Iqnāʿ, al-Matbʿah al-Azhariyyah, Cairo, vol. 2, p. 134.
sale of rights and legality of options 275
ited by law like wine or allowed under necessity like a corpse or a thing
the possession of which would not be allowed unless under dire need
is not māl.21 It is clear that in the Ḥ anbalī school like the Mālikī and
Shāf ʿī the concept of property is not limited to corporeal property or
ʿayn since the corner stone is manfaʿah and not the corporeal aspect.
From these different definitions we could say, first of all, that māl is
anything which has a benefit and could be possessed. Therefore, anything
that has no benefit, like some kind of insect, is not māl. Secondly, the
manfaʿah in that thing should be a manfaʿah which is authorized by
the sharīʿah. Hence, the manfaʿah in alcohol could not be considered as
māl for a Muslim although it is a property for a non-Muslim. Thirdly,
the manfaʿah should not be authorized only by way of need like a dog
for a farmer for instance, or necessity like a corpse or maytah.
However, the early Ḥ anafīs defined māl as everything that could be
physically possessed and one could customarily benefit from.22 However,
Ibn ʿĀbidīn, one of the later Ḥ anafī jurists defined māl as everything
which has a value and could be valued by darāhim or danānir.23 From
this last definition, it is clear that the underlying characteristic of māl
for the later Ḥ anafīs, is the value, which could be assessed or valued in
terms of money. Hence, anything which has a value is māl and anything
which has value is manfaʿah and people would not be accustomed to
value something which has no benefit and would not be used as a sub-
ject matter of transaction.24 Thus, the concept of māl or property for
the early Muslim jurists includes all forms of rights, which have certain
benefits and to which people are accustomed. Consequently, the right
involved in options is a right, which has a benefit since it allows its
holder to manage his business risk and people are accustomed to this
fact. It has become widespread as a tool of risk management. Moreover,
it is not necessary that all people should be aware of this custom, since
the custom of traders in one city could be considered as a genuine
custom then, a custom, which is internationally recognized may also
be considered valid.
21
Ibn Qudāmah, al-Mughnī, vol. 5, p. 439.
22
Al-Sarakhsi, al-Mabṣūt, vol. 11, p. 78; Ibn Nujaym al-Ashbāḥ wa al-Nazāʾir, vol. 2,
p. 209.
23
Ibn ʿĀbidīn, Ḥ āshiyat Rad al-Muḥtār ʿalā al-Dur al-Mukhtār, Muṣtạ phā al-Ḥ alabī,
1966, Egypt, vol. 1, p. 11.
24
For more details see ʿAjīl Jāsim al-Nashmī, “Al-Huqūq al-Maʿnawiyyah Bayʿ al-ʾIsm
al-Tijāri’, Majallat Majmaʿ al-Fiqh al-Islāmī, no. 5, vol. 3, 1988, pp. 2303–2309.
276 chapter eleven
Besides the fact that the general definition of property in the works
of early scholars includes rights, it is necessary to refer to some of the
cases legalized by Muslim jurists in which the subject matter of sale is
a right.
25
Ibn ʿĀbidīn, Ḥ āshiyat Rad al-Muḥtār ʿalā al-Dur al-Mukhtār, vol. 4, p. 520.
26
See for instance, al-Mirdāwī, al-Insāf, vol. 6, p. 478; al-Buhūtī, Kashshāf al-Qināʿ, vol. 4,
p. 216; Sharḥ Muntahā al-Irādāt, vol. 2, p. 464; Mawāhib al-Jalīl, vol. 4, p. 224.
27
al-Duraynī, Buḥ ūth Muqāranah fi al-Fiqh al-Islāmī wa ʿUsūlihi, vol. 2, p. 56.
278 chapter eleven
In short, we are not concerned here with the different legal implications
of these rights or their forms and categories or their usefulness in mod-
ern times. Our concern is just limited to the possibility of independently
selling these pure rights. And if the pure rights in ḥ uqūq al-irtifāq could
be sold, then why should there be any objection to the sale of the right
to option in conventional options trading on the ground that the subject
matter is a pure right?
The majority of Muslim scholars are of the opinion that these rights
of easement are rights related to property and therefore, they could
be sold. However, the Ḥ anafīs have some difference of opinion within
sale of rights and legality of options 279
their school. They agree with the majority that these rights could be
sold if they are subordinated to physical property and not as indepen-
dent because these rights are pure rights or ḥ uquq mujarradah. While
some other Ḥ anafīs acknowledge that these rights could have a price
independently.
The following articles of the Majallah may reflect the practical neces-
sity of selling them separatly. First of all, article 216 stated that it is lawful
to sell the right of passage (ḥ aqq al-murūr), a right to take a portion
of running water (ḥ aqq al-shūrb) and the right to flow (ḥ aqq al-masīl)
as a part of selling the land itself as is the case of ḥ aqq al-murūr and
ḥ aqq al-masīl and the sale of water as subject to the water pipes and
not independently.
However, article 1168 stated, “when there is a house owned jointly
by two persons, and another person has a passage over it, if the owners
of the house decide to partition that house, the owner of the passage
could not prevent them. But when they have partitioned the house,
they should forgo the right of passage as it was before. And if, with the
consent of the three, the road is sold together with the house and if the
road is owned in common among the three, the price is divided among
the three. If the ownership of the road, subject to the right of passage,
belongs to the owner of the house and if the other person only has a
right of passing over it, everyone takes that of which he has a right.
Thus, the land with the right of way is valued first, and then it is valued
without the right of way. The excess of the one over the other of the two,
belongs to the man who has the right of way, the remainder, falls to the
owner of the house”. It is clear from this article, ʿAli Ḥ aydar argues that
the right of way or ḥ aqq al-murūr is given a separate price. As it has
been stated before, the issue is disputed in the Ḥ anafī school.28
What is important here is that despite the fact the right in ḥ uqūq
al-irtifāq is recognized as a pure right, it can be sold and this is the
opinion of the majority of Muslim jurists. Hence, the claim that the
right in options trading could not be exchanged because the subject
matter in options is a right is unfounded.
28
See Ali Haydar, Durār al-Ḥ ukkām Sharḥ Majallat al-Aḥ kām, Dār al-Kutub
al-ʿIlmiyyah Beirut, vol. 1, p. 165 & vol. 3, pp. 182–185.
280 chapter eleven
29
See Ibn ʿĀbidīn, Ḥ āshiyat Rad al-Muhtār ʿalā al-Dur al-Mukhtār, vol. 4, pp. 14–16,
al-Buhūti, Maṭālib ʾulī al-Nuhā, vol. 4, p. 370.
sale of rights and legality of options 281
house in exchange for relinquishing his right to stay at the place until
the end of the agreed upon duration between the parties before.30
The third aspect of khulu is about a person who acquired the khulu
by legal means in the first place. He has a full right to sell his right of
khulu to any person and at whatever price he likes. Similar to this is the
case where a person has no khulu in the place; however, he has rented
it by legal means which would entitle him to sell his right to stay at the
place to a third person. For instance, a person has rented a commercial
place at RM 2000 per month for 12 months. After using the place for
seven months, for instance, a third person came and requested him to
rent him the place for the remaining 5 months. The one who has rented
the place at RM 2,000 per month could rent it to the third party at
RM 3,000 per month for the remaining 5 months of his initial period
and a third person could rent it from the second for three months, for
instance, at RM 3,500 per month. Here again the subject matter of the
transaction is not the commercial place itself, but the right to stay in it
for a specific period. In other words, the subject matter here is a pure
right but all schools of Islamic law consider it as a legal transaction.31
On the other hand, it should be noted that this kind of exchange has
no precedent in the early Islamic legal system. The first scholar, who gave
a fatwā, about the issue was Nāṣir al-Dīn al-Laqqānī from the Mālikī
school, on the grounds of prevailing custom in Egypt at that time since
the legality of such a transaction did not contradict any specific legal
text. Subsequently, the fatwā was adopted by other schools of Islamic
law32 including the Ḥ anafīs based on custom33 although according to
their general principles such a manfaʿah could not be sold because it
is a pure right.
Thus, if the right in badal al-khulu was admitted to be exchanged
based on custom and the general principles of Islamic commercial
30
For more detail see Mohammad Sulaimān al-Ashkhar, “badal al-khuluʿ”, Majallat
Majmaʿ al-Fiqh al-Islāmī, no. 4 vol. 3, pp. 2187–8
31
See for instance, al-Dasūqī, al-Sharḥ al-Kabīr, vol. 3, p. 467; al-Zurqānī, Sharḥ
al-Zurqānī ʿalā Khalīl, vol. 7, p. 75; al-Zuhailī, “badal al-khuluʿ”, Majallat Majmaʿ al-
Fiqh al-Islāmī, no. 4, vol. 3, pp. 2173–7; Ibrāhīm Fādil al-Dabū “Ḥ ukm al-sharīʿah fi
badal al-khulu, al-Sarfaqaliyyah”, Majallat Majma al-Fiqh al-Islāmī, no. 4, vol. 3, pp.
2199–2219; Muḥyī al-Dīn Qādī, “badal al-khulu fi al-fiqh al-Islāmī”, Majallat Majmaʿ
al-Fiqh al-Islāmī, no. 4, vol. 3, pp. 2223–2271; Muhammad ʿAli al-Taskhīrī, “badal al-
khulu wa Taṣḥīḥi”, Majallat Majmaʿ al-Fiqh al-Islāmī, no. 4, vol. 3, pp. 2275–2279.
32
See al-Buhūtī, Matālib ulī al-Nuhā, vol. 4, p. 370.
33
See Ibn ʿĀbidīn, Ḥ āshiyat Rad al-Muḥtār ʿalā al-Dur al-Mukhtār, vol. 4, pp. 14–16.
Ibn Nujaym, al-Ashbāh wa al-Nazāʿir, pp. 113–114.
282 chapter eleven
law, even without any precedent in the works of previous scholars and
despite the fact that it is an exchange of rights, then why should there
be opposition to the sale of the right of option since there is no specific
text which prohibits the sale of rights in general or allows the sale of
certain rights and disallows the sale of others?
Moreover, it shows that the number of cases where a pure right could
be sold is not limited to what is reported from the early Muslim jurists
since there is no specific text from the Qurʾān or the ḥ adīth which limits
it. The whole issue is based on custom and public interest. It was on
these grounds that al-Laqqānī made his first fatwā regarding the right
of khulu, which was followed later by other jurists. Therefore, in mod-
ern times as well the legality of selling a pure right should be based on
custom and maslaḥ ah.
It is generally agreed that any person who has precedence in the use
of a plot of land which has not been used before by anyone by way of
developing it (ihyāʾ) has full right of ownership over it if he has been
able to make full use of it. However, if he did not develop it fully but
has just made taḥ jīr over it by marking the land with boundary stones
or wooden stakes, the clearing or burning of grass, enclosing the land,
digging a trench etc, he has only the right of precedence over the use
of this land and not the full right of ownership. Thus, unless he fails to
make full use of this land, no one has the right to challenge him in his
right of precedence or his possible right of ownership. This is based on
the saying of the Prophet (PBUH) “One who rehabilitates a barren land,
it is his, and there is no right of expropriation against him”.34 However,
it is quite possible that after getting the right of precedence over it, he
would like to sell it. Does he have the right to sell this right or exchange
it for something of value?
Muslim jurists have different views about the issue. Al-Ramly, for
instance, said whoever gets precedence over the use of some land and
has already erected some woods or assembled some dust on it and, he
is financially capable of making full use of the land and to rehabilitate
34
Sunan Abū Dawūd, Kitāb al-Kharāj, English translation, Aḥmad Ḥ assan Lahore,
Asraf press, 1984, vol. 2, p. 874.
sale of rights and legality of options 283
it, he has the right of precedence over this land . . . however, the prevail-
ing opinion is that this right could not be sold or given as a gift; it is
like the right of shuf ʿah, as it is maintained by al-Māwardī. In contrast
al-Dārimī is of the opinion that such a right could be sold because there
is a full control of this right by the owner. Hence, it could be sold.35
Similarly, it is reported in Takmilat al-Majmūʿ that if someone
acquired a right of precedence over some land, he could transfer it to
another person and, if he dies, it could be inherited by his heirs as is
the case with the right of shuf ʿah. However, regarding the sale of such
a right, there are two opinions in the madhhab: that of Abū Ishāq is
that it could be sold because the owner has full control over it while
the prevailing opinion is that it could not be sold because it is similar
to the right of shuf ʿah.36
It thus appears that in the above case at least two leading Shāf ʿī
scholars, namely Abū Ishāq and al-Dārimī approve the legality of selling
such a right. A similar difference of opinion has been reported within
the Ḥ anbalī school where the prevailing opinion is that it could not be
sold while Abū al-Khattāb upheld the legality of selling such a right.37
Moreover, al-Buhūtī held that although the owner of such a right could
not sell it as it is the prevailing opinion in the madhhab, he could drop
it in exchange for something of value (al-nuzūl ʿanhu bi ʿiwad).38 From
the above, it is clear that the legality of selling the right of precedence is
disputed among Muslim scholars. Although its legality is upheld by the
minority; it seems that this opinion is in line with the general principles
and there is no specific text to prohibit it.
It was based on such an analysis and through the endorsement of
the opinion of the minority that murābaḥ ah lilʾāmir bi al-shirāʾ was
implemented. In other words, at the beginning it was very difficult for
Islamic banks to implement murābaḥ ah in its original form where the
promise between the Islamic bank and the customer should not be
binding and the customer shall have the full right to cancel the deal
as he wishes. It was a very risky transaction for the Islamic banks.
To solve the problem the opinion of Ibn Shubruma from the Mālikī
school that every promise is binding was adopted. Yet, it was discov-
ered later that some other jurists also shared this opinion although it
35
Al-Ramlī, Nihāyat al-Muhtāj, vol. 5, p. 336.
36
al-Mutīʿ, Takmilat al-Majmuʿ, vol. 14, p. 471.
37
See, al-Mirdāwī, al-Inṣāf fi Masʾīl al-Khilāf, vol. 6, pp. 373–374.
38
See, Al-Buhūtī, Sharḥ Muntahā al-ʾIrādāt, vol. 2, p. 464.
284 chapter eleven
still remained the opinion of the minority. What is argued here is that
it is a normal approach in Islamic law to endorse the opinion of the
minority as long as it is in line with the objective of the sharīʿah. The
fiqh literature is replete with cases of this nature. Therefore, if the right
of precedence, although a pure right, could be sold according to some
Muslim jurists, why not the right in option, which is also a pure right
related to a property?
Considering the fact that the sale of pure rights is based on custom
and maṣlaḥ ah, some modern Muslim jurists have accepted certain
contemporary issues involving the sale of rights on the above grounds.
For instance, the right to sell intellectual property is accepted by the
vast majority of contemporary Muslim jurists. What is important for us
here is the argument used to validate the sale of such rights. ʿAjīl Jāsim
al-Nashmī for instance, argues “since the right of intellectual property is
the result of intellectual and material efforts emanating from its owner
and has proportional presence in the material goods resulting from
that effort, it will be a source of competition for that good and give it a
reputation. This by consequence will fulfill the objective of the sharīʿah
by making available the best items for people’ consumption. This is a
maṣlaḥ ah recognized by the sharīʿah. And if people are accustomed to
prefer one kind of trademark to another this is like a maṣlaḥ ah based
on custom. And the maṣlaḥ ah is a usufruct and a usufruct is a prop-
erty according to the majority of Muslim scholars from the Mālikīs,
Shāf ʿīs, Ḥ anbalīs, the late-day Ḥ anafīs as well as the early Ḥ anafīs if
the transaction realises a maṣlaḥ ah to the people. Therefore, we can say
that intellectual property is a māl in Islamic law. And since the right in
intellectual property is a usufruct and a valuable property, it is a valid for
ownership because people are accustomed to consider it as a property
due to the benefit drawn from it. The right in intellectual property is
not the objective by itself but rather the manfaʿah resulting from it as it
is said by al-ʿIzz Ibn ʿAbd al-Salām “the usufruct is the main objective
of owning properties”.39
39
Al-ʿIzz Ibn ʿAbd al-Salām, Qawāʿid al-Aḥ kām, fi Maṣalīḥ al-ʾAnām, vol. 2, p. 17.
sale of rights and legality of options 285
40
ʿAjīl Jāsim al-Nashmī, “al-Ḥ uqūq al-Maʿnawiyyah, Bayʿ al-Ism al-Tijārī”, Majallat
Majmaʿ al-Fiqh al-Islāmī, 1988, no. 5, vol. 3, 2345–2346.
41
Muhammad Taqī al-ʿUsmānī, “Bayʿ al-Ḥ uqūq al-Mujarradah”, Majallat Majmaʿ
al-Fiqh al-Islāmī, 1988, no. 5, vol. 3, p. 2384.
42
Ibid., p. 2386.
286 chapter eleven
However, even the assumption that the sale of “rights” and usu-
fruct contravenes the norm of qiyās or analogy, as recorded by Taqī
al-ʿUsmānī, is only according to the Ḥ anafī school to which our scholar
is loyal. Thus, the investigation of some other contemporary Muslim
jurists like al-Duraynī that the sale and purchase of rights is in line with
qiyās and not against it according the majority of Muslim scholars.43
The practical result is that there is no limitation to make analogy, for
selling or exchanging a right, to the already existing cases of selling or
exchanging rights approved by the early scholars.
Even the concept of ḥ aqq mujarrad may not be applied to the kind
of rights discussed here if we consider Fathī al-Duraynī’s investigation
that a ḥ aqq mujarrad could not be disposed of in exchange for some-
thing and, therefore, those rights, which could be exchanged are not
ḥ aqq mujarrad.
On the other hand, commenting on al-Qarāfī’s opinion on intellectual
property (al-Qarāfīʾ is one of the rare classical scholars who discussed
the possibility of selling the right to ideas as he calls it ijtihādat. He
concludes that such a characteristic or right cannot be inherited because
it is a right related to the intention of the owner and his mind or ḥ aqq
mujarrad. Moreover, the ijtihād is a kind of ʿibādah and the ʿibādah
could not be sold). Al-Duraynī said, al-Qarāfīʾ has forgotten the dimen-
sion of ʿurf and value (qīmah) in the sale of such rights and since it
is recognized internationally that intellectual property has a value by
custom, then it could be considered as usufruct or a public interest or
maṣlaḥ ah and there is no evidence from the Qurʾān or the sunnah that
usufruct is not property. Moreover, there is no text which defines the
concept of māl or property in Islamic law. It is commonly known that
if juridical truth (al-ḥ aqīqah al-sharʿiyyah) is not present in the issue of
discussion we have to refer to customary truth (al-ḥ aqīqah al-ʿurfiyyah)
recognized by the people to serve their interests. When the Lawgiver
does not specifically mention something, He wants people to refer to
custom, because generally people’s transaction are based on interest and,
custom is based also on interest. Thus, although the right in intellectual
property is not something corporeal seen and to which we could point
out, the benefit in this right could be fulfillled through the place where
the right has settled . . . and we all know that among the characteristics
43
See, Fatḥ ī al-Duraynī, Buḥ ūth Muqāranah, fi al-Fiqh al-Islāmī wa ʿUsūlihi,
Muʾassasat al-Risālah, Beirut, 1994, vol. 2, p. 37.
sale of rights and legality of options 287
44
See, Fathi al-Duraynī, Buḥ ūth Muqāranah, fi al-Fiqh al-Islāmī wa ʿUsūlihi, vol. 2,
pp. 45–6.
45
ʿAbd al-Wahhāb Abū Sulaimān, “al-Ikhtiyārāt” Majallat Majmaʿ al-Fiqh al-Islāmī,
no. 6, vol. 1, pp. 307–308; Abū Qhuddah, “al-Ikhtiyārāt”, Majallat Majmaʿ al-Fiqh
al-Islāmī, no. 6, vol. 1, p. 334.
46
See for instance, al-Nawawī, al-Majmūʿ, vol. 9, p. 222; al-Dasūqī, Sharḥ al-Dasūqī
ʿalā Muqtaṣar Khalīl, vol. 3, p. 102.
288 chapter eleven
of the option as is the case with his other attributes. Hence, the right
of option in khiyār al-sharṭ cannot be inherited.47
The Ḥ anbalīs have, on the other hand, considered such a right as
inheritable only if the beneficiary has claimed or requested the inheri-
tance of that right before his death, otherwise it cannot be inherited.48
This means that in principle such a right cannot be inherited unless
the beneficiary requests so. It could also be argued that in principle it
is inheritable on condition that the beneficiary requests it.49 However,
one may ask why the beneficiary of the option would not exercise it
himself rather than transfering it to his heir? The answer is that he may
want to push his right to option to the final limit of the agreed duration
before taking the decision of rescinding the contract or confirming it.
Therefore, he may transfer this right to his heir if he does not expect to
survive after a critical accident, for instance. This is because although
the right to option or the right to shuf ʿah are related to the intention
of the beneficiary, they have proprietary (māl) repercussions.50
It should be noted that the Ḥ anbalī jurists defended only the argument
that the right to option is not inheritable and no argument has been
advanced for the opinion that it could be inherited if the beneficiary
requested for it. Commenting on the Ḥ anbalīs’ opinion, Abū Ghud-
dah said, they (the Ḥ anbalīs) failed to produce any specific evidence
to substantiate their claim that this right could not be inherited except
the statement that “if the beneficiary requested, it could be inherited”.
This is a very weak argument, which does not call for discussion,51
because the request of a person would not make inheritable what is
not inheritable.
In his conclusion, Abū Ghuddah said the strongest opinion is that
the right of option is inheritable whether the beneficiary requests for
it before his death or not. This is due to the fact that besides the argu-
ment of those who consider such a right as inheritable, it is logical to
widen the scope of estate or tarikah so that it could include everything,
which has a great similarity with property, rather than to limit it. This
is because in principle everything left behind by the deceased person
47
al-Kāsānī, al-Badāʾiʿ, vol. 5, p. 264.
48
See for instance, Ibn Qudāmah, al-Mughnī, vol. 3, p. 518; Ibn Mufliḥ, al-Furūʿ,
vol. 4, p. 91.
49
ʿAbd al-Sattār Abū Qhuddah, al-Khiyār wa Atharuhu fi al-ʿUqūd, Dallah al-Barakah,
Jeddah, p. 321.
50
Ibid., p. 322.
51
Ibid., p. 323.
sale of rights and legality of options 289
52
Ibid., pp. 324–5.
290 chapter eleven
53
See for instance, Ibn Qudāmah, al-Mughnī, Maktabat al-Jumhiriyyah, Cairo, vol. 5,
p. 375; Ibn al-Humām, Sharḥ Fatḥ al-Qadīr, vol. 7, p. 446; al-Mirdāwi, al-Inṣāf, vol. 6,
p. 298; al-Shirāzī, al-Muhazzab, Dār al-Fikr, Beirut, vol. 2, p. 283; Ibn Rushd, Bidāyat
al-Mujtahid, Dār al-Fikr, vol. 2, p. 198.
54
al-Kāsānī, Badāʿi al-Ṣanāiʿ, Maktabat Zakariah Youssuf, Cairo, vol. 6, p. 2719;
al-Mirdāwī, al-Inṣāf fi Maʿrifat al-Rājih min al-Khilāf, vol. 6, p. 270; al-Shirāzī, Al-
Muhazzab, Dār al-Fikr, vol. 1, p. 280.
sale of rights and legality of options 291
55
Imām Mālik, al-Mudawwah al-Kubrā, Dār al-Fikr Beirut, vol. 4, p. 216; Ḥ āshiyat
al-Ruhuni ʿalā al-Zurqānī, Dār al-Fikr, Beirut, vol. 6, p. 264; al-Mawwāq, al-Tāj wa
al-Iklīl, with Mawāhib al-Jalīl, vol. 5, p. 318.
56
See Al-Nawawī, Rawḍat al-Ṭ ālibīn wa ʿUddat al-Muttaqīn, al-Maktab al-Islāmī
Beirut, vol. 5, p. 111.
292 chapter eleven
57
Ṣiddīq al-Ḍ arīr, “al-Ikhtiyārāt”, Majallat Majmaʿ al-Fiqh al-Islāmī, no. 6, vol. 1,
p. 263.
58
al-Fatāwā al-Hindiyyah, Dār ʾIhyāʾ al-Turāth al-ʿArabī, Beirut, 1986, vol. 3, p. 45;
Fatāwā Qādī Khān, Mawlawi Niyaz Muhammmad Kuwanti, Bulishistan, 1985, vol. 2,
p. 371.
sale of rights and legality of options 293
59
See, ʿAbd al-Raḥmān bin Nāṣir al-Saʿdī, al-Mukhtārāt al-Jaliyyah min al-Masāʾil
al-Fiqhiyyah, al-Riʾāsah al-ʿĀmmah li Idārāt al-Buḥūth al-ʿIlmiyyah wa al-Daʿwah wa
al-Irshād, Saudi Arabia, 1985, p. 148.
60
ʿAli al-Khafīf Aḥ kām al-Muʿamalāt al-Sharʿiyyah, Dār al-Fikr al-ʿArabī, Cairo,
1996, vol. 3, pp. 171–172.
294 chapter eleven
the two more conservative schools, namely the Ḥ anafī and Ḥ anbalī
schools, regarding the issue of considering the right of option and the
right of pre-emption as rights related to property, allow the exchange
of such rights for money, then to allow such an exchange based on the
principles of the Mālikīs and Shāf ʿīs is much clearer.
Thus, we can say: to exchange a pure right such as the right in option
of khiyār al-sharṭ is in line with sharīʿah principles because it is a right
related to property. Hence, there are no legal grounds to invalidate
the exchange or the sale of option in conventional options contracts
because options are similar to khiyār al-sharṭ and since the option in
khiyār al-sharṭ cannot be exchanged, it will be so with the right in
conventional options.
61
See al-Dasūqī, Ḥ āshiyat al-Dasūqī ʿalā al-Sharḥ al-Kabīr, Dār ʿIhyāʾ al-Kutub
al-ʿArabiyyah, Cairo, vol. 3, p. 68; al-Ḥ attāb, Mawāhīb al-Jalīl Li-Sharḥ Mukhtaṣar Khalīl,
Dār al-Fikr, vol. 2, p. 378; Al-Khirshī ʿalā Mukhtaṣar Khalīl, Dār al-Fikr, vol. 5, p. 83;
Muhammad ʿUleish, Sharḥ Minaḥ al-Jalīl ʿalā Mukhtaṣar Khalīl, vol. 2, p. 573.
sale of rights and legality of options 295
62
ʿUlesh, Sharḥ Minaḥ al-Jalīl ʿalā Mukhtaṣar Khalīl, Dār Sādir, vol. 2, p. 174.
63
See, al-Buhūtī, Kashshāf al-Qināʿ, vol. 5, p. 206.
296 chapter eleven
custody of her child after the divorce in exchange for getting the khulʿ
from her husband.64 It should be noted however, that even those who
have argued against such an exchange maintained that the right to
custody does not belong to the mother as it is maintained by the first
group but rather to the child, and therefore, the mother could not drop
it in exchange of something.
64
Ulesh Sharḥ Minaḥ al-Jalīl ʿalā Mukhtaṣar Khalīl, Dār Ṣādir, vol. 2, pp. 184–5;
Ḥ āsiyat Qurrat ʿUyūn al-Akhbār Takmilat Rad al-Mukhtār ʿalā al-Dur al-Muhtār, Dār
al-Kutub al-ʿIlmiyyah, Beirut, 1994, vol. 5, p. 254.
65
Ḥ āsiyat Qurrat ʿUyūn al-Akhbār Takmilat Rad al-Mukhtār ʿalā al-Dur al-Muhtār,
pp. 631–638.
sale of rights and legality of options 297
1
See Dallah al-Barakah Hawliyyat al-Barakah, al-Barakah Investment and Devel-
opment Company General Secretariat, Unified Sharʿīah Board, issue no. 2, December
2000, p. 290.
2
Ibid., p. 274.
conclusion 301
case in the conventional forward contract based on istiḥ sān and need
but rejected the conventional forward contract. Perhaps for the simple
reason that istiṣnāʿ is admitted by the early ḥ anafī jurists while the
conventional forward contract is not. However, it is submitted that if
these contemporary Muslim jurists have opted for the legality of istiṣnāʿ
based on the ḥanafī’s opinion and, putted aside the opinion of the three
other schools which regard istiṣnāʿ as an illegal contract, due to the need
for such an independent contract in contemporary business, they have
to accept, similarly, the legality of the conventional forward contract
which has the same legal characteristics as istiṣnāʿ and which is much
needed today than istiṣnāʿ itself.
In a similar approach some scholars accepted the permissibility of
deferring of the price of salam for three days as it is the stand in the
Mālikī school or even more than that due to contemporary practical
constrain, but rejected the permissibility of deferring the price in the
forward contact. It is submitted that if it is permissible to defer the price
of salam for three days, more or less there is no reason for not applying
the same principles with regard to the forward contract.
The main alternative advanced by the opponent for the conventional
forward and futures contracts is the salam contract. However, it is clearly
articulated by a number of honest Muslim economists that salam could
not solve these problems and there is a genuine need for the forward
contract. Therefore, insisting on salam as the only alternative to con-
ventional forward contract means putting Muslim businessmen in a
disadvantageous position without genuine reason which may encour-
aging them to invest their wealth in foreign financial institutions for
better management and planning even if that will lead sometimes to a
clear contradiction with the principles of Islamic law.
Some commentators have proposed the concept of al-waʿd (promise)
which shall be binding on both parties. However, it is clear that if the
promise is binding on both parties, it would be a clear forward contact
despite the theoretical differences advanced by the proponent of this
argument. Therefore, it is submitted that the conventional forward
contract in commodities is a genuinely needed contract. Hence, it is a
valid contract because there is no genuine text to prohibit it. Moreover,
it is an established principle in Islamic law that prohibition could only
be established by means of decisive evidence which is not the case with
the forward contact.
Similarly, it is maintained that the forward contract could be based on
bayʿ al-ṣifah or sale by description especially its concept in the Mālikī’s
302 conclusion
3
Mukhtār al-Salāmī, “Taʾjīl al-Badalayn Fi al-ʿUqūd”, Nadwat al-Barakah al-Tāsiʿah
ʿAsharah lil Iqtiṣād al-Islāmī Makkah al-Mukarrah 7–8 Ramadān 1421H, December
2–3, 2000.
4
Rafīq al-Maṣrī, Munāqaṣāt al-ʿUqūd al-Idāriyyah, Dār al-Maktabī, Damascus,
1999.
5
Ḥ asan al-Jawāhirī ʿUqūd al-Tawrīd wa al-Munāqaṣāt paper presented to the twelve
session of the Islamic Fiqh Academy, Rabat-Morocco. Also see the discussion regarding
ʿUqūd al-Munāqasāt Majallat Majmaʿ al-Fiqh al-Islāmī, no. 9, vol. 2, pp. 308–309.
6
Majallat Majmaʿ al-Fiqh al-Islāmī, no. 9, vol. 2, pp. 297–306.
7
ʿAbd al-Wahhāb Abū Sulaimān, ʿAqd al-Tawrīd Dirāsah Fiqhiyyahh Taḥ līliyyah,
paper presented to the twelve session of the Islamic Fiqh Academy, Rabat-Morocco.
8
See, Aḥmad ʿAli ʿAbd Allāh, “al-Bayʿ ala al-Ṣifah” paper presented in Nadwat Bnak
al-Shamāl litaʿṣil al-ʿAmal al-Maṣrafī, 20–21 June 1997.
9
See, Majallat Majma al-Fiqh al-Islāmī, no. 9, vol. 2, pp. 325–333.
conclusion 303
no touch with reality because paper money are the real medium of
exchange and store of value nowadays and not commodities.
Similarly it is maintained that it is inappropriate to consider paper
money like fulūs used in Islamic history and which are considered by
the majority of scholars as not having the characteristics of gold as a
store of value and medium of exchange. It is also submitted that it is
inappropriate to ignore the present day reality that gold is no longer
the medium of exchange and store of value as it is used to be before.
It is inconceivable to admit that the ʿillah or the ratio behind the pro-
hibition of exchanging gold and silver unless they are hand to hand is
that they are the medium of exchange or mutlaq al-thamaniyyah and
to ignore the effect of this ʿillah when it is almost not present, as is the
case nowadays, and to insist that gold and silver are currencies by cre-
ation without any legal basis. Yet, the present study acknowledges the
complexity and sensitivity of the issue and calls for a collective ijtihād
to resolve this issue. Nevertheless, the concept of promise to sell gold
followed by a contract to confirm it during delivery time can be accepted
as a temporary solution for gold trading.
On the other hand, arguing for the legality of the forward contract
in commodities does not mean any new transaction needed by Mus-
lim traders or businessmen should be admitted even if it contradicts
clear text of the Qurʾān or the sunnah. It is based on such an approach
that the present study has concluded that in spite of the fact that the
forward contract in commodities is legal, such permissibility could not
be extended to the forward currency market for reason that this will
lead to ribā while the sharīʾah texts are clear regarding the prohibition
of ribā.
Considering the fact that a suitable alternative is needed, several pro-
posals have been advanced with the promise to bay or to sell currencies
in future as a preferred temporary solution. Some other solutions such
as the concept of mutual loan through the setting up of cooperative
fund or the basket currencies as means of risk management have also
been discussed.
The present study concludes that the development of a viable Islamic
future market is possible whether we chose the conventional forward
contract or salam as the basis for such a market. However, developing
a future market based on salam requires the resell of the subject matter
of salam before taking possession or the conclusion of a parallel salam.
However, the idea of reselling the subject matter of salam before taking
possession has been rejected by the majority of contemporary Muslim
304 conclusion
jurists for the simple reason that the majority of early Muslim jurists
has done so.
Here, we are faced once again with a methodology which does not
give any due consideration to al-ijtihād al-intiqāʾī 10 and fails to benefit
from the opinion of Ibn Taymiyyah and his disciple Ibn Qayyim who
very successfully expounded that there is nothing in the texts or Qiyās
which prohibits the resell of salam before taking possession or the
Mālikī’s opinion that such a transaction is legal if the subject matter of
contract is not foodstuff.
Moreover, considering the fact that the main argument against sale
prior to taking possession in the work of classical Muslim jurists, is
the possibility of gharar, the present study argued that such a gharar
is almost nonexistent in the contemporary futures market with the
presence of the clearing house which guarantees the execution of the
contract. This is furthermore enhanced by the tight supervision of
the market by the exchange authorities by controlling the position of the
market participants and the fidelity fund which is established in order
to compensate the victim of a default by brokers. Thus, it is concluded
that it is permissible to sale before taking possession, in reliance on
the opinion of the Mālikī school and that of Ibn Taymiyyah and Ibn
Qayyim and the absence of gharar.
Regarding speculation it is submitted that despite the fact the issue
is most commonly cited to invalidate derivatives contract, it is almost
impossible to get rid of speculation in its broader sense because every
business requires a degree of speculation and forecast. It is based on
this reality that several Muslim economists such as Fahīm Khān, Aḥmad
ʿAbdel Fattāh, Muhammad Akram Khān, Muhammad Obaitullah and
others acknowledge that a limited form of speculation is not only
unavoidable but desirable to the good performance of the market. Yet,
excessive speculation based on manipulation, cornering and fraud is
unIslamic and any possible use of derivatives contracts in Islamic finance
must be clear of that kind of speculation.
Furthermore, it has been demonstrated that associating speculation
with financial crisis is not always justified. Yet, speculation definitely
aggravates the situation but generally the real causes of the problem
lies elsewhere. It could weaknesses in the macro and microeconomic
10
Regarding the concept of al-Ijtihād al-Intiqāʾī see, Youssuf al-Qaraḍāwī, al-Ijtihād
fi al-Sharʿiah al-Islāmiyyah, Dār al-Qalam, 1989, Kuwait.
conclusion 305
11
See Iqbāl Afzal “Engineering Islamic Finance”, Islamic Banker, November 1996,
p. 241.
conclusion 307
12
Obaidullah, “Financial Engineering with Islamic Options”, Islamic Economic
Studies, p. 93.
13
The Reuters Financial Training Series, An Introduction to Derivatives, p. 136.
308 conclusion
14
Ibid.
15
Zamir Iqbal, “Financial Innovation in Islamic Banking”, p. 14.
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INDEX
Gharar 17, 26–27, 32, 48, 51 n. 23, Kuala Lumpur Futures Market 132
52–56, 58–59, 63–66, 68–70, 108, Kuala Lumpur Interbank Offered rates
160–161, 166, 173, 176, 210, 216, 218, 133
237, 240, 259, 264, 267, 295, 299–300, Kuala Lumpur Commodities Clearing
302, 304 House Sdn Bhd 140
gharar fāhish 35, 311 Kuwait Finance House 80–81, 106, 161
gharar yasīr 311
Gold for gold 72, 76–78, 97, 104–105 Māl 273, 314
gold standard 74 Manfaʿah 36, 213, 273–275, 280–281,
Great Depression 74 284, 296, 314
Market
Hadānah 10, 295, 297, 306, 311 crash 143, 150, 154, 305
Ḥ aqq 272, 296 forces 15, 75, 267
Ḥ aqq al-irtifāq 312 manipulation 151
Ḥ aqq al-nuzūl an al-wazāʿif 276–277, movement 150, 196
292, 306 participants 15, 118, 123, 138, 170,
187, 207, 298, 304
Ibn Mani 93, 240, 245–246 place 29, 124–126, 139, 185
Ijārah 7, 13, 48, 213, 228, 230, price 42, 96, 125, 135, 168, 190–191,
242–244, 257, 305, 312 202, 253, 258, 263, 296, 306–307,
Ijārah muntahiyyah bil-tamlīk 312 313
ʿIllah 5, 12, 17, 21, 69, 72, 77, 79–81, problem 146
83–87, 89, 94, 98, 100–102, 134, 148, offenses 118
162–163, 173, 209, 303, 312, 315 operation 186–187
illah qāsirah 84 rigging 145
Istisnāʿ 5, 11, 13, 18–19, 23, 25, 28, risk 1, 121
48–49, 61–64, 70, 130, 251–252, share 22
299–301, 305, 313 medium of exchange 76–77, 79–83,
Interest rate 1, 10, 47, 122, 133, 158, 85–95, 98–100, 102, 209, 303
208, 259–263, 299, 307 Mohammed Obaidullah 40, 99–102,
Islamic law xix, 4–13, 18, 20, 22–23, 134, 200, 209, 222, 307
25–26, 28–29, 32–33, 37, 39, 43, 45, Monetary system 12, 72–73
47–49, 51–52, 55, 66–67, 70, 72, 86, Money by creation 6, 88, 93
89, 94, 103, 106, 113, 115, 118, 129, Monzer Kahf xvi
159, 180, 188, 201, 218–219, 221–223, Muhammad Akram Khan 23–25, 114,
226, 231–233, 237, 244, 251, 256, 117, 149, 156, 304
258, 263, 266, 269–270, 272–273, Mukhtar al-Salami 19, 36–38, 46, 48,
276–277, 280–281, 284, 286, 289–290, 59, 65, 135, 161, 212–213, 269–270,
295–296, 299, 301–302, 305, 311–312, 287, 302
314–316 mutlaq al-thamaniyyah 81, 85–87, 94,
303
Kamali xi, 24–28, 34 n. 39, 38–40, Mutual loan 109–110, 303
54, 144, 164, 166, 222, 231, 233, 253, Mutual promise for currency
266–267, 269 exchange 103
Khiyār al-ʿayb 313
Khiyār al-Shart 6–8, 10, 13, 35–36, Najash 32, 184, 189, 315
38–42, 59, 204, 212, 215–216, Nazih Hammad 56, 58, 115, 161,
219–220, 222–226, 228–235, 240, 166–167, 174, 251
259, 270–271, 273, 287–294,
297–298, 305–307, 313 Obaiyathullah 216
Khiyār al-Naqd 6–7, 219–220, Option 6–13, 17–21, 24–26, 32, 34–43,
222–223, 233–236, 313 59, 65, 100–101, 104, 118 n. 50,
Kuala Lumpur Commodity Exchange 121–122, 127, 133, 140, 143, 145,
23, 117, 131–132, 138, 150 177–178, 181–182, 191, 196–216,
332 index
218–234, 237, 241, 243, 246–248, of pure right 7–8, 13, 247, 269, 284
251–255, 257–267, 269–273, 275, prior to taking possession 8, 10, 12,
277–279, 282, 284, 287–294, 297–299, 21 n. 13, 26, 118, 159, 161–163, 304
305–307, 313 Saleh al-Marzuqi 87–89
Sayyid Abdul Jabbar 23, 117
Palm oil 4, 37, 103, 117, 125–127, Second World War 74
131–132, 136–138, 153, 167, 190 Securities Commission 182–183,
Paper money 12, 76, 78–88, 90, 92–96, 267–268
98–100, 102, 209, 224, 302–303 Siddq Al-Darir 37, 59, 212–215, 241,
Permissibility 8–9, 11–12, 24, 27, 40, 255–256, 270, 287, 292, 302
51, 55, 57–58, 67, 71, 87, 99–100, Silver 5–6, 72–74, 76–81, 83–90,
104–105, 134, 165, 174, 239, 269, 277, 92–102, 104–105, 209, 303
297–298, 301–303, 312 Speculation 6, 8, 10, 12, 26, 29–32,
Prevailing 32, 44, 59, 75, 77, 82–83, 41, 44, 99, 103 n. 17, 118, 131, 141,
104, 134, 161, 170, 245, 251, 262, 266, 143–151, 153–157, 176, 191, 211–212,
270, 276–277, 280–281, 283, 292, 298, 216, 229–230, 259–260, 304
306 Stock
Prohibition 1, 10–12, 17, 21, 23, 27–28, Exchange 147, 156, 198, 216, 253,
30, 33, 51 n. 23, 52–53, 58, 64, 68–69, 257
72, 77, 84–85, 87, 89, 100–101, 106, indices 16, 19, 29, 208, 214, 259–260,
109, 129, 133, 148, 160–163, 172–176, 299
187, 209–210, 239, 256, 264, 272, margin 157
300–301, 303 market 17, 19, 97, 115, 154, 157,
promise 19, 24, 35, 44, 70, 75, 82, 93, 198–199, 210, 229, 245, 305
103–109, 112–113, 229, 238, 245, 247, option 122
249, 283, 299, 301, 303 price 205–206
Public interest 14, 19–20, 26, 37, 46, trading 7, 13, 157, 214
56, 108, 190, 266, 282, 286, 314 Sudin Haron 49
Put option 11–13, 197, 199, 201–202,
204–206, 220, 254, 256–258, 263–264, Taʿām 161, 164–165, 316
305 Taḥ jīr 10, 282, 316
Taqi Usmani 20, 212, 285–286, 297
Rafiq al-Misri 109 Thaman
Risk thamaniyyah 82, 85–86, 88–90, 93,
management 3–7, 12–13, 33, 37, 40, 95, 98
93, 116, 121, 132, 142, 191, 204, mutlaq al-thamaniyyah 25, 81,
219–220, 223, 228–231, 234–235, 84 n. 29, 85–87, 94, 303
252, 275, 299, 303, 305–306 qhalabat al-thamaniyyah 85
mechanism 124 thaman ḥ aqīqī 99, 101
reduction 39, 252–253
shifting 29, 135–136 Umar Charpa 25
United States 74, 78, 91, 124, 130, 206
ṣarf 6, 19, 58–60, 78, 81, 89–90, 96,
103 n. 17, 104–105, 115, 316 Vogel, Frank E. 32, 34 n. 39, 42–43,
Sale 168, 254, 257, 272
of commodities 160, 243
of currency by description 5, 48, weighable 77–78, 85, 101–102, 313
65–66, 301
of debt of nonexistent 5, 302 Zakah 79–81, 84, 86, 95, 146, 149, 164,
of foodstuff 162–163, 224 317
of gold 104 Zamir Iqbal 50
ABSTRACT
اﻟﻤﻘﺎﺻﺔ ودور اﻟﻮﺳﻄﺎء ﻓﻲ أﺳﻮاق اﻟﻤﺴـﺘﻘﺒﻠﻴﺎت واﻟﻘﻮاﻧﻴﻦ اﻟﻤﻨﻈﻤﺔ ﻟﻬﺎ ،وﻗﺪ اﻋﺘﻤﺪت
اﻟﺪراﺳﺔ ﻓﻲ ﻫﺬا اﻟﺠﺎﻧﺐ ﻋﻠﻰ ﻗﺎﻧﻮن اﻟﻤﺸـﺘﻘﺎت اﻟﻤﺎﻟﻴﺔ اﻟﻤﺎﻟﻴﺰي وﺗﻮاﺑﻌﻪ.
إن أﻫﻤﻴﺔ اﻻﺧﺘﻴﺎرات ﻓﻲ اﻷﺳﻮاق اﻟﻤﺎﻟﻴﺔ اﻟﻤﻌﺎﺻﺮة ﺗﻨﺠﻢ ﻋﻦ ﻗﺪرﺗﻬﺎ ﻟﺘﻔﺎدي ﻋﻴﻮب
ﻋﻘﻮد ﺗﺄﺟﻴﻞ اﻟﺒﺪﻟﻴﻦ وﻋﻘﻮد اﻟﻤﺴـﺘﻘﺒﻠﻴﺎت ،وﻗﺪ انﻗﺸﺖ اﻟﺪراﺳﺔ إﻣﻜﺎﻧﻴﺔ ﺗﻘﺪﯾﻢ ﺧﻴﺎر
اﻟﺸﺮط وﺑﻴﻊ اﻟﻌﺮﺑﻮن ﻛﺄدوات إﺳﻼﻣﻴﺔ ﻟﻠﺘﺤﻮط وﻛﺒﺪﯾﻞ ﻟﻼﺧﺘﻴﺎرات .ﻛﻤﺎ انﻗﺸﺖ اﻟﺪراﺳﺔ
اﺳـﺘﺨﺪام ﺑﻴﻊ اﻟﻌﺮﺑﻮن ﻓﻲ اﻟﺼﺮف واﻟﺴﻠﻊ واﻷﺳﻬﻢ واﻟﺨﺪﻣﺎت.
إن ﺑﻴﻊ اﻟﺤﻘﻮق اﻟﻤﺠﺮدة ﻛﻤﺎ ﻫﻮ اﻟﺤﺎل ﻓﻲ ﻋﻘﻮد اﻻﺧﺘﻴﺎرات ﯾﻌﺘﺒﺮ أﺣﺪ اﻷﺳﺲ
اﻟﺘﻲ ارﺗﻜﺰ ﻋﻠﻴﻬﺎ اﻟﺒﻌﺾ ﻟﺘﺤﺮﯾﻢ ﻫﺬﻩ اﻟﻌﻘﻮد ،وﻗﺪ ذﻫﺒﺖ اﻟﺪراﺳﺔ إﻟﻰ ﺟﻮاز ﺑﻴﻊ ﻣﺜﻞ
ﻫﺬﻩ اﻟﺤﻘﻮق ﻣﻌﺘﻤﺪة ﻓﻲ ذﻟﻚ ﻋﻠﻰ اﻟﻘﻮاﻋﺪ اﻟﻌﺎﻣﺔ ﻟﻠﻤﻌﺎﻣﻼت ودور اﻟﻌﺮف ﻓﻲ ﺗﺤﺪﯾﺪ
ﻧﻮع اﻟﺤﻘﻮق اﻟﺘﻲ ﯾﺠﻮز ﺑﻴﻌﻬﺎ ،ﻛﻤﺎ اﺳـﺘﻌﺮﺿﺖ اﻟﺪراﺳﺔ ﺻﻮر ﻓﺮدﯾﺔ أﺟﺎز ﻓﻴﻬﺎ اﻟﻔﻘﻬﺎء
ﺑﻴﻊ اﻟﺤﻘﻮق وﺗﻄﺒﻴﻖ ذﻟﻚ ﻋﻠﻰ ﺑﻴﻊ اﻟﺤﻘﻮق ﻓﻲ اﻻﺧﺘﻴﺎرات.
وﻣﻦ أﻫﻢ ﻫﺬﻩ اﻟﺼﻮر اﻟﻔﺮدﯾﺔ :ﺑﻴﻊ ﺣﻖ اﻟﻤﻠﻜﻴﺔ اﻟﻔﻜﺮﯾﺔ وﺑﻴﻊ ﺧﻴﺎر اﻟﺸﺮط وﺑﻴﻊ ﺣﻖ
اﻟﺸﻔﻌﺔ ،ﻛﻤﺎ ﺗﻌﺮﺿﺖ اﻟﺪراﺳﺔ ﻟﻠﺘﻨﺎزل ﻋﻦ ﺣﻘﻮق اﻻرﺗﻔﺎق واﻟﺘﺤﺠﻴﺮ وﺣﻖ اﻟﻤﺴﺎوﻣﺔ
وﺣﻖ اﻟﺤﻀﺎﻧﺔ ﺑﻤﻘﺎﺑﻞ ﻣﺎﻟﻲ .ﻛﻤﺎ ﺗﻨﺎوﻟﺖ اﻟﺪراﺳﺔ اﻟﻌﻼﻗﺔ ﺑﻴﻦ ﻋﻘﻮد اﻻﺧﺘﻴﺎرات ابﻟﻘﻤﺎر
وﻗﺪﻣﺖ إﺟﺎﺑﺔ ﻛﺎﻓﻴﺔ.
ﻣﻠﺨﺺ اﻟﺒﺤﺚ
إن أﻫﻤﻴﺔ اﻟﻤﺸـﺘﻘﺎت ﻛﺄدوات ﻣﺎﻟﻴﺔ ﻹدارة اﻟﻤﺨﺎﻃﺮ أﻣﺮ ﻣﺴﻠﻢ ﺑﻪ ﻓﻲ اﻻﻗﺘﺼﺎد
اﻟﻤﻌﺎﺻﺮ ،وﻗﺪ دﻋﺎ ﻋﺪد ﻣﻦ اﻟﻌﻠﻤﺎء واﻟﺒﺎﺣﺜﻴﻦ إﻟﻰ اﻻﺳـﺘﺨﺪام اﻟﺤﺬر ﻟﻬﺬﻩ اﻷدوات ﻓﻲ
اﻟﻤﻌﺎﻣﻼت اﻹﺳﻼﻣﻴﺔ ،إﻻ أن ﻫﺬﻩ اﻷدوات وﺑﺼﻮرﺗﻬﺎ اﻟﺤﺎﻟﻴﺔ ﻻ ﺗﺘﻔﻖ ﺗﻤﺎﻣ ًﺎ ﻣﻊ اﻟﻘﻮاﻋﺪ
اﻟﻤﺎﻟﻴﺔ اﻹﺳﻼﻣﻴﺔ.
ﺗﺒﺪأ اﻟﺪراﺳﺔ ﺑﻨﻘﺪ ﺗﺤﻠﻴﻠﻲ ﻟﻠﺪراﺳﺎت اﻟﺴﺎﺑﻘﺔ ﺛﻢ ﺗﻨﺘﻘﻞ إﻟﻰ دراﺳﺔ ﻛﻞ ﻣﻦ ﻋﻘﺪ
ﺗﺄﺟﻴﻞ اﻟﺒﺪﻟﻴﻦ ،ﻋﻘﻮد اﻟﻤﺴـﺘﻘﺒﻠﻴﺎت ،وﻋﻘﻮد اﻻﺧﺘﻴﺎرات ﻣﻦ اﻟﻨﺎﺣﻴﺔ اﻟﺸﺮﻋﻴﺔ .ﻛﻤﺎ
ﺗﺘﻌﺮض اﻟﺪراﺳﺎت إﻟﻰ اﻟﻔﻮاﺋﺪ اﻻﻗﺘﺼﺎدﯾﺔ ﻟﻬﺬﻩ اﻟﻌﻘﻮد وﻃﺒﻴﻌﺘﻬﺎ اﻟﻘﺎﻧﻮﻧﻴﺔ ﻣﻊ ﺗﻘﺪﯾﻢ اﻟﺒﺪﯾﻞ
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ﺿﺮوراي. اﻹﺳﻼﻣﻲ ﻣﺘﻰ ﻣﺎ ﺑﺪا ذﻟﻚ
ﺗﺴـﺘﺨﺪم ﻋﻘﻮد اﻟﻤﺸـﺘﻘﺎت ﻓﻲ أﺳﻮاق اﻟﺴﻠﻊ واﻷﺳﻬﻢ واﻟﻤﻌﻤﻼت واﻟﻤﺆﺷﺮات ،وﺳﻌﺮ
اﻟﻔﺎﺋﺪة إﻻ أن ﻧﻄﺎق ﻫﺬا اﻟﺒﺤﺚ ﻳﺮﻛﺰ ﻋﻠﻰ اﺳـﺘﺨﺪام ﻫﺬﻩ اﻟﻌﻘﻮد ﻓﻲ أﺳﻮاق اﻟﺴﻠﻊ واﻷﺳﻬﻢ
ﻓﻘﻂ .وﯾﻌﻮد ذﻟﻚ إﻟﻰ أن اﺳـﺘﺨﺪام ﻫﺬﻩ اﻟﻌﻘﻮد ﻓﻲ أﺳﻮاق أﺳﻌﺎر اﻟﻔﺎﺋﺪة واﻟﻤﻌﻤﻼت
ﻣﻦ اﻟﺮاب اﻟﻮاﺿﺢ اﻟﺬي ﻻ ﺧﻼف ﻓﻴﻪ .أﻣﺎ اﺳـﺘﺨﺪاﻣﻬﺎ ﻓﻲ أﺳﻮاق اﻟﻤﺆﺷﺮات ﻓﻴﺸـﺘﻤﻞ
ﻋﻠﻰ ﻏﺮر ﻓﺎﺣﺶ وﻟﺬا أﺧﺮج ﻋﻦ ﻧﻄﺎق ﻫﺬا اﻟﺒﺤﺚ.
إن دراﺳﺔ ﻋﻘﺪ ﺗﺄﺟﻴﻞ اﻟﺒﺪﻟﻴﻦ ﺗﺸﻤﻞ اﺳـﺘﺨﺪاﻣﻪ ﻓﻲ أﺳﻮاق اﻟﺴﻠﻊ وإﻣﻜﺎﻧﻴﺔ ﺑﻴﻊ وﺷﺮاء
اﻟﺬﻫﺐ ﻣﻊ ﺗﺄﺟﻴﻞ اﻟﺒﺪﻟﻴﻦ واﻟﺒﺪﯾﻞ ﻟﺘﺄﺟﻴﻞ اﻟﺒﺪﻟﻴﻦ ﻓﻲ أﺳﻮاق اﻟﻤﻌﻤﻼت .وﻫﻜﺬا ﻓﻘﺪ
أﺟﺮﯾﺖ ﻣﻘﺎرﻧﺔ ﺑﻴﻦ ﻛﻞ ﻣﻦ ﻋﻘﺪ اﻟﺴﻠﻢ واﻻﺳـﺘﺼﻨﺎع وﺑﻴﻊ اﻟﺼﻔﺔ ﻣﻦ ﺟﻬﺔ وﻋﻘﺪ ﺗﺄﺟﻴﻞ
اﻟﺒﺪﻟﻴﻦ ﻣﻦ ﺟﻬﺔ أﺧﺮى ،ﻛﻤﺎ ﺣﺎوﻟﺖ اﻟﺪراﺳﺔ دﺣﺾ اﻟﺰﻋﻢ ﺑﺄﻧﻪ ﻻ ﺗﻮﺟﺪ أي ﻓﺎﺋﺪة ﻣﻦ
ﻋﻘﻮد ﺗﺄﺟﻴﻞ اﻟﺒﺪﻟﻴﻦ أو أﻧﻬﺎ ﺗﺨﺎﻟﻒ ﻣﺒﺪأ ”ﻻ ﺗﺒﻊ ﻣﺎ ﻟﻴﺲ ﻋﻨﺪك“.
أﻣﺎ ﻋﻦ ﺗﺄﺟﻴﻞ اﻟﺒﺪﻟﻴﻦ ﻓﻲ ﺑﻴﻊ وﺷﺮاء اﻟﺬﻫﺐ ﻓﻘﺪ ﺑﺪأت اﻟﺪراﺳﺔ ﺑﻨﺒﺬة اترﯾﺨﻴﺔ
ﻣﻮﺟﺰة ﻋﻦ اﻟﻨﻈﺎم اﻟﻨﻘﺪي اﻟﻌﺎﻟﻤﻲ ﺗﻠﺘﻬﺎ دراﺳﺔ ﻧﻘﺪﯾﺔ ﻟﻌﺪد ﻣﻦ اﻟﻔﺘﺎوى ﻋﻦ ﺗﺠﺎرة اﻟﺬﻫﺐ
ﺛﻢ ﻓﺼﻠﺖ اﻟﻘﻮل ﻓﻲ اﻟﻌﻠﺔ وراء ﻣﻨﻊ اﻟﺸﺎرع ﻟﺒﻴﻊ وﺷﺮاء اﻟﺬﻫﺐ ﻣﺆﺟﻼ وﻣﺪى ﺗﺄﺛﻴﺮ
ذﻟﻚ إذا ﻓﻘﺪ اﻟﺬﻫﺐ ﻓﻲ اﻟﻌﺼﺮ اﻟﺤﺎﺿﺮ ﺗﻠﻚ اﻟﻌﻠﺔ .واﻟﻐﺮض اﻷﺳﺎﺳﻲ ﻣﻦ ﺑﺤﺚ ﻫﺬﻩ
اﻟﺠﺰﺋﻴﺔ ﻫﻮ اﺳﺘﻨﻬﺎض اﻟﻬﻤﻢ ﻟﻤﺰﯾﺪ ﻣﻦ اﻟﺒﺤﺚ ﺣﻮل ﻫﺬﻩ اﻟﻘﻀﻴﺔ ﻧﻈﺮا ﻟﺘﺄﺛﻴﺮﻫﺎ اﻟﻜﺒﻴﺮ
ﻋﻠﻰ ﻧﻈﺎم اﻟﺼﻴﺮﻓﺔ اﻹﺳﻼﻣﻴﺔ ﻛﻜﻞ.
أﻣﺎ ﻋﻦ اﻟﺒﺪاﺋﻞ ﻟﺘﺄﺟﻴﻞ ﻓﻲ أﺳﻮاق اﻟﻌﻤﻼت ﻓﻘﺪ انﻗﺸﺖ اﻟﺪراﺳﺔ ﻋﺪة ﻣﻘﺘﺮﺣﺎت
أﻫﻤﻬﺎ :اﻟﻤﻮاﻋﺪة ﻓﻲ اﻟﺼﺮف ،ﻣﺒﺎدﻟﺔ اﻟﻘﺮوض اﻟﺤﺴـﻨﺔ وﻧﻈﺎم ﺳﻠﺔ اﻟﻤﻌﺎﻣﻼت وﺻﻴﻐﺔ
اﻟﺼﻨﺪوق اﻟﺘﻌﺎوﻧﻲ.
أﻣﺎ ﻋﻦ دراﺳﺔ اﻟﻤﺴـﺘﻘﺒﻠﻴﺎت ﻓﻘﺪ ﺗﻌﺮﺿﺖ اﻟﺪراﺳﺔ ابﻟﻨﻘﺪ ﻟﻠﺤﺠﺞ واﻷدﻟﺔ اﻟﻤﺤﺮﻣﺔ ﻟﻬﺬﻩ
اﻟﻌﻘﻮد ،ﺧﺎﺻﺔ ﻓﻴﻤﺎ ﯾﺘﻌﻠﻖ ﺑﻌﻼﻗﺔ ﻫﺬﻩ اﻟﻌﻘﻮد ابﻟﺒﻴﻊ ﻗﺒﻞ اﻟﻘﺒﺾ وﺑﻴﻊ اﻟﺪﻳﻦ وﻋﻤﻠﻴﺎت
اﻟﺘﺤﻮط واﻟﻤﻀﺎرﺑﺔ وﻋﻼﻗﺔ ذﻟﻚ ابﻧﻬﻴﺎر اﻷﺳﻮاق اﻟﻤﺎﻟﻴﺔ .ﻛﻤﺎ ﺗﻌﺮﺿﺖ اﻟﺪراﺳﺔ ﻷﻫﻤﻴﺔ ﻏﺮﻓﺔ